UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PATTEE  SERIES 


ILLUSTRATIVE  CASES 


IN 


CRIMINAL  LAW 


WITH   ANALYSIS  AND  CITATIONS 


BY 


JAMES  PAIGE,  M.  A.,  LLM. 

w\ 

Professor  of  Law  In  the  College  of  Law,  University  of  Minnesota 


PHILADELPHIA 

REES  WELSH  &  CO. 
1897 


I 

I  52? 


C- 


Copyright,  1897, 
REES  WELSH  &  CO. 


PREFACE. 

H 

v 

y  r  I  BEACHING  the  fundamental  principles  of  law  by  means  of 
1        actual  cases  illustrative  of  the  meaning,  limitations  and 
scope  of  those  principles  is  now  admitted,  I  think,  to  be 
the  most  successful  method  of  training  young  men  for  the  bar,  as 
it  is  certainly  the  most  effectual  method  of  educating  and  disci- 
plining the  mind. 

The  "case  lawyer"  is  denounced.  If  by  that  term  is 
meant,  as  is  usually  true,  that,  having  a  case  to  conduct,  he  goes 
to  the  reports  in  search  of  another  whose  facts  resemble  the  one 
he  has  to  consider,  ignoring  the  principle  of  law  applicable  to  all 
cases  of  that  class,  the  denunciation  is  merited ;  but  the  lawyer 
who  consults  the  authorities  extensively  and  thoroughly  for  a 
knowledge  of  principles  and  the  just  limits  of  their  application,  is 
the  one  whose  merits  and  success  are  sure  of  recognition. 

The  "  Series,"  of  which  this  volume  is  one,  is  designed  to 
present  the  fundamental  principles  of  the  branches  of  law  con- 
sidered, and  to  furnish  the  student  with  abundant  citations  of 
authority  where  he  can  learn  how  judges  have  regarded  those 
principles  and  what  limitations  and  modifications  they  have 
recognized  in  their  application. 

With  us,  this  method,  with  lectures,  and  in  some  branches 
of  the  law,  text-books,  has  produced  good  results  ;  and  if  this  book 
can  be  made  useful  to  others  whose  life  and  energy  are  devoted 
to  the  cause  of  legal  education,  that  fact  will  be  an  especial 
gratification  to  its  author,  Mr.  Paige. 

The  merits  and  value  of  this  volume  are  entirely  due  to 
Mr.  Paige,  who  has  devoted  to  it  much  patient  labor,  extensive 
reading,  and  careful  thought.  His  analysis  of  the  subject  so 
carefully  prepared,  is  a  helpful  feature  of  the  book.  In  the  hands 
of  students  it  is  extremely  valuable. 

W.  S.  PATTEE,  LL.D., 

University  of  Minnesota,  Dean  of  College  of  Law. 

April  10,  1897. 


ANALYSIS. 


A.  NATURE  AND  ELEMENTS,  1. 

1.  Definition,  1. 

2.  Intent,  1. 

a.  Kinds,  5. 

(1)  Constructive,  5. 

(2)  Specific,  10. 

(3)  Motive,  12. 

b.  Capacity  as  Affecting  Intent,  27. 

(1)  Infancy,  27. 

(2)  Insanity,  30. 

(a)  Tests,  30. 

(I1)  Right  and  Wrong,  30. 
(21)  Irresistible  Impulse,  34. 
(31)  Emotional  Insanity,  39. 
(41)  Moral  Insanity,  39. 

(b)  Proof  of  Insanity,  39. 

(3)  Intoxication,  46. 

(4)  Coverture,  53. 

(5)  Corporations,  54. 

c.  Ignorance  of  Law,  63. 

d.  Negligence,  65. 

e.  Coercion  or  Duress,  67. 

f.  Necessity,  76. 

g.  Justification  and  Excuse,  88. 

(1)  Mistake  of  Fact,  88. 

(2)  Accident  or  Misadventure,  90. 

(3)  Defence,  97. 

(a)  Of  Self,  97. 

(b)  Of  Property,  106. 

(I1)  In  General,  106. 
(21)  Of  Habitation,  113. 

(4)  Enforcement  of  Law,  121. 

(v) 


VI  ANALYSIS. 

(5)  Public  Policy,  129. 
3.  The  Act,  136. 

a.  Individual,  138. 

b.  Joint,  138. 

(1)  Principals,  149. 

(a)  First  Degree,  149. 

(b)  Second  Degree,  151. 

(2)  Accessories,  156. 

(a)  Before  the  Fact,  156. 

(b)  After  the  Fact,  159. 

c.  Attempts,  161. 

d.  Conspiracies,  170. 

e.  Solicitations,  177. 

f.  Consent,  181. 

g.  Condonation,  184. 

B.  KINDS,  185. 

1.  Treasons,  185. 

2.  Felonies,  196. 

3.  Misdemeanors,  200. 

C  HOW  PRESCRIBED,  203. 

1.  By  the  Common  Law,  203. 

2.  By  Statute,  209. 

D.  JURISDICTION,  213. 

1.  Locality,  213. 

2.  Limits  of  the  United  States,  223. 

3.  Limits  of  the  States  and  Counties,  242. 

4.  United  States  within  State  Limits,  248. 

a.  Exclusive  Jurisdiction,  248. 

b.  Concurrent  Jurisdiction,  253. 

E.  SPECIFIC  CRIMES,  255. 

1.  Crimes  against  the  Government,  255. 

a.  Treason,  255. 

b.  Crimes  against  Elective  Franchise,  256. 

c.  Bribery,  257. 


ANALYSIS.  Vil 

d.  Crimes  against  Executive  Power,  261. 

e.  Crimes  against  Legislative  Power,  261. 

2.  Crimes  against  Public  Justice,  262. 

a.  Bribery,  262. 

b.  Perjury,  264. 

c.  Forging,  etc.,  Public  Records,  271. 

d.  Rescue,  271. 

e.  Escapes,  271. 

f.  Prison  Breach,  271. 

3.  Crimes  against  the  Person,  272. 

a.  Homicide,  272. 

(1)  Elements,  272. 

(a)  Human  Being,  272. 

(b)  Death,  277. 

(I1)  Corpus  Delicti,  277. 
(21)  Cause  of,  285. 
(31)  Time  of,  289. 

(2)  Kinds,  290. 

(a)  Justifiable,  290. 

(I1)  In  the  Punishment  ol   Crimes, 

290. 
(21)  In    the    Prevention  of  Crimes, 

291. 

(b)  Excusable,  297. 

(I1)  Misadventure,  297. 
(21)  Defence,  299. 

(a1)  Of  Person,  299. 

(b1)  Of  Habitation,  300. 

(c)  Felonious,  300. 

(I1)  Murder,  300. 

(a1)  Suicide,  317. 

(b1)  Resulting    from    Attempt, 

322. 
(I2)  To    Kill    the    Person 

Killed,  322. 

(21)  To  Kill  Another  than 
the  Person  Killed, 
326. 


Vlii  ANALYSIS. 

(S2)  To   do   Great    Bodily 

Harm,  331. 
(4*)  To  Commit  a  Felony, 

333. 
(c1)  Resulting  from  Resistance 

of  Lawful  Arrest,  335. 
(21)  Manslaughter,  339. 
(a1)  Voluntary,  339. 

(11)  In  Passion  Roused  by  Provocation, 
339. 

(2l)  In  Resisting  Unlawful  Arrest,  347. 
(V)  Involuntary,  350. 

(12)  In  Doing  an  Unlawful  Act ;  Misde- 

meanor, 350. 

(2a)  In  Doing  a  Lawful  Act,  357. 
(a»)  Negligence,  357. 
(b2)  Self  Defence,  357. 
(c2)  Chastisement,  357. 
(d1)  Arrest,  357. 

b.  Mayhem,  358. 

c.  Assaults,  361. 

d.  Robbery,  367. 

(1)  Taking  from  Person  or  Presence,  367. 

(2)  Force  and  Violence,  371. 

(3)  Fear,  377. 

e.  Libel,  380. 

4.  Crimes  against  the  Person,  Public  Decency  and  Good 
Morals,  381. 

a.  Rape,  381. 

(1)  Consent  as  a  Defence,  384. 

b.  Seduction,  389. 

c.  Abortion,  392. 

d.  Adultery,  407. 

e.  Abduction.  408. 

f.  Incest,  409. 

g.  Sodomy,  Bestiality,  Buggery,  409. 
h.  Fornication,  409. 

i.  Gambling  and  Lotteries,  410. 


ANALYSIS.  IX 


5.  Crimes  against  Religious  Liberty,  410. 

a.  Sabbath  Breaking,  410. 

b.  Violating  Sepulchre,  etc,,  410. 

6.  Crimes  against  Property,  411. 

a.  Arson,  411. 

(1)  Elements,  411. 

(a)  Burning,  411. 

(b)  Dwelling,  412. 

(c)  Another's  House,  417. 

b.  Burglary,  422. 

(1)  Elements,  422. 

(a)  Breaking,  422. 

(b)  Entry,  430. 

(c)  The  Intent,  433. 

(d)  The  House,  438. 

(e)  Night  Time,  444. 

c.  Forgery,  446. 

d.  Larceny,  451. 

(1)  Elements,  451. 

(a)  Personal  Property,  451. 

(b)  The  Act,  453. 

(c)  Carrying  Away,  461. 

(d)  The  Intent,  465. 

(e)  False  Pretence,  469. 

(f)  Embezzlement,  473. 

(g)  Malicious  Mischief,  478. 


TABLE  OF  CASES. 


Ann  v.  The  State, 
Armour  v.  State, 
Arp  v.  The  State, 

Ashworth  v.  State, 
Benton  v.  Commonwealth, 

Commonwealth  v.  Bowen, 
Commonwealth  v.  Burke, 
Commonwealth  v.  Drum, 
Commonwealth  v.  Gerade, 

Commonwealth  v.  McHale, 
Commonwealth  v.  Ryan, 

Commonwealth  v.  Walden, 
Clements  v.  State  of  Georgia, 

Collins  v.  The  State, 


Duncan  v.  State, 
Edmonds  v.  State, 
Flanagan  v.  The  People, 
Flanigan  v.  The  People, 
Franco  v.  State, 
Harrison  v.  The  People, 
Jellico    Coal  Min.    Co.  v.    Common- 
wealth, 

Jennings  v.  Commonwealth, 
Kitchens  v.  The  State  of  Georgia, 


PAGE 

11  Humph.  159  90 

3  Humph.  370  438 
97  Ala.  5;  12  So.  Rep. 

301  67 
31  Tex.  Cr.  Rep.  419; 

20  S.  W.  982  377 
89  Va.  570;  16  8.  E. 

725  196 

13  Mass.  354  317 

105  Mass.  376  384 

58  Pa.  St.  9  300 
145  Pa.  St.  289; 

22  Atl.  464  39 

97  Pa.  St.  397  203 
155  Mass.  523;  30  N. 

E.  364  473 

3  Cush.  558  478 
84  Ga.  660;  11  S.  E. 

505  367 
88  Ga.  347;  14  S.  E. 

474  151 

7  Humph.  148  1 

70  Ala.  8  463 

52  N.  Y.  467  30 

86  N.  Y.  554  4d 

42  Tex.  276  430 

50  N.  Y.  518  453 


97  Ky.  246;  29  S. 

W.  26  63 
16  S.  W.  348  326 
80  Ga.  810;  7  S.  E. 

209          358 


xii 


TABLE   OF   CASES. 


McOrath  v.  State, 

Martin  v.  State, 
Marvin  v.  State, 
Miller  v.  Florida, 
Miller  v.  The  People, 

Molton  v.  The  State, 

People  v.  Brown, 
People  v.  Burt, 

People  v.  Cole, 
People  v.  Gardner, 

People  v.  Griffin, 
People  v.  Haggerty, 
People  v.  Katz, 
People  v.  Kerrigan, 

People  v.  Lee  Kong, 
People  v.  Palmer, 

People  v.  Taylor, 
People  v.  Van  Alstyne, 

People  v.  War, 
Price  v.  The  People, 
Regina  v.  Dudley, 
Regina  v.  Keyn, 

Regina  v.  Michael, 
Bembert  v.  The  State, 
Rex  v.  Van  ButcheU, 

Roberts  v.  The  State, 
Snelling  v.  The  State, 


PAQX 

25  Neb.  780;  41  N. 

W.  780  422 

18  Tex.  App.  224  253 

19  Ind.  181  209 
15  Fla.  577  264 

5  Barb.  203  10 
105  Ala.  18;  16  So. 

795  458 
105  Cal.  66;  38  Pac. 

518  465 
51  Mich.  199;  16  N. 

W.  378  347 

4  Park  Cr.  Rep.  35  291 
144  N.  Y.  119;  38  N. 

E.  1003  161 

19  Cal.  578  444 
46  Cal.  354  411 
23  How.  Pr.  93  156 

147  ST.  Y.  210;  41  N. 

E.  494  322. 
95  Cal.  666;  30  Pac. 

800  361 
109  N.  Y.  110;  16  N. 

E.  529  277 

2  Mich.  250  412 
144  N.  Y.  361;  39  N. 

E.  343  389 

20  Cal.  117  200 
109  HI.  109  433 

14  Q.  B.  D.  273  76 
13  Cox  C.  C.  403  ;L.  R. 

2  Exch.  Div.  63  223 

2  Moody  C.  C.  120  149 
53  Ala.  467  446 

3  Car.  &  P.  629  (14 

E.  C.  L.)  297 

2  Head,  501  469 
87  Ga.  50;  13  8.  E. 

154  335 


TABLE   OF   CASES, 


X1U 


PAGE 


Snyder  v.  The  People, 
State  v.  Bantley, 
State  v.  Bowers, 


State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
.State  v. 
State  v. 


Burgdorf, 

Burke, 

Burnham, 

Burt, 

Curry, 

Ellis, 

Felter, 

Green, 

Hall, 


State  v.  Hutchinson, 

State  v.  Matthews, 

State  v.  McDonald, 

State  v.    Mayor  and    Aldermen 

Knoxville, 
State  v.  Miles, 
State  v.  Morrow, 

State  v.  Murray, 
State  v.  O'Brien, 

State  v.  Payne, 
State  v.  Peo, 

State  v.  Walker, 

State  v.  Walker, 
State  v.  Watts, 

State  v.  Winthrop, 
State  v.  Zulich, 

Storey  v.  State, 
The  State  v.  Goin, 
The  State  v.  McGowan, 


26  Mich.  106 
44  Conn.  537 

35  S.  C.  262;  14  S. 

E.  488 
53  Mo.  65 

30  la.  331;  33Atl.  257 
56  Vt.  445 
64  N.  C.  619 
1  Jones  Law,  280 
33  N.  J.  L.  102 
25  la.  67 
81  N.  C.  560 
114  KG.  909;  198.  E. 
602 

36  Me.  261 
91  K  C.  635 

7  Mo.  App.  510 


of 


12  Lea,  146  129 

36  Atlantic,  70  262 
40  S.  C.  221;  18  S. 

E.  853  392 

29  S.  W.  590  333 
3  Vroom.  169  (32  N 

J.  L.)  357 

1  Swan,  383  159 
9  Houston,  488;  33 

Atl.  257   100,  299 
9  Houston,  464;  33 

Atl.  227  312 

37  La.  Ann.  560  331 
48  Ark.  56;  2  S.  W. 

342  480 

43  la.  519  272 
5  Dutcher,  409  (29 

K  J.  L.)  248 

71  Ala.  329  106 

9  Humph.  175  27 

20  Conn.  245  415 


TABLE   OF  CASES. 

MM 
The  State  v.  O'Brien,  3  Vroom.  169  (32 

N.  J.  L.)  66 

The  State  v.  The  Morris  and  Essex 

Railroad  Co.,  23  N.  J.  L.  360  54 

Thomas  v.  The  State,  91  Ala.  34;  9  So.  81     371 

Thompson  v.  State,  106  Ala.  67;  17  So. 

512  170 

Timmons  v.  State,  34  Ohio  St.  426  425 

United  States  v.  Greathouse,  2  Abb.  (U.  S.  C.  C.), 

364  185,  255 

United  States  v.  Grush,  5  Mason,  290  242 

United  States  v.  Harmon,  46  Fed.  Rep.  414  12 

United  States  v.  Rice,  1  Hughes,  560     121,  290 

United  States  v.  Taintor,  11  Blatch  374  5 

Wellar  v.  The  People,  30  Mich.  16  350 

Williams  v.  The  State,  81  Ala.  1;  1  So.  179     138 

Wright  v.  Commonwealth,  86  Ky.  124;  2  S.  W. 

904,  909       113,  300 
Yoes  v.  The  State,  9  Ark.  42  136 


A. 
NATURE  AND  ELEMENTS. 

1.  DEFINITION. 

A  crime  is  a  violation  of  a  public  law  punishable  by  an 
action  in  the  name  of  the  State. 

4  Bl.  Com.  *  page  5  (Lewis's  Edition);  May  Cr.  Law,  p.  1;  Clark,  p.  1; 
New  York  Penal  Code,  Sec.  3;  Minn.  Stat.  1894,  Sec.  6287;  Bishop,  Sec. 
32;  Wharton  1,  Sec.  14  et  seq;  Hawley  &  McGregor,  p.  1. 

2.  INTENT. 

No  act  is  a  crime  unless  done  with  a  crtminml  Intent,. 
either  actual  or  implied  of  law. 

DUNCAN  v.  STATE. 

Supreme  Court  of  Tennessee,  1846. 
7  Humph.  148. 

The  defendant,  Duncan,  was  indicted  and  convicted  in  the 
Criminal  Court  of  Davidson  County  for  unlawfully  carrying 
away  a  slave  by  steamboat.  He  appealed. 


2  NATURE   AND   ELEMENTS. 

TURLEY,  J.  delivered  the  opinion  of  the  court. 

Robert  Duncan  was  indicted  at  the  April  term,  1845,  of  the 
Criminal  Court  at  Nashville,  under  the  act  of  1833,  ch.  Ill, 
passed  for  the  purpose  of  more  effectually  preventing  the  own- 
ers of  steamboats  and  stage  coaches,  from  carrying  off  slaves, 
without  the  knowledge  or  consent  of  the  owners. 

The  1st  section  of  the  act,  provides,  that  "no  stage  contractor, 
or  driver,  or  owner,  or  captain  of  any  steamboat,  or  other  water 
craft,  shall  receive,  and  carry  from  any  place  in  the  State,  to 
any  other  place  within,  or  out  of  the  State,  any  black  or  colored 
person,  unless  said  colored  person  shall  produce  the  certificate 
of  the  clerk  of  the  court  of  the  county  from  which  said  stage  or 
steamboat  is  about  to  depart;  which  certificate  shall  be  under 
the  seal  of  said  court,  stating  that  the  said  clerk  has  known  said 
colored  person,  and  that  he  or  she  is  free,  or  has  generally  been 
reputed  to  be  free,  or  that  it  has  been  proved  to  him,  by  respec- 
table witnesses  known  to  him,  that  said  colored  person,  is  free, 
or  generally  reputed  so;  or  if  said  colored  person,  be  actually  a 
slave,  then  and  in  that  case,  a  verbal  or  written  authority  from 
the  owner  or  owners  shall  be  sufficient." 

The  2d  section  provides,  that  "if  any  of  the  persons  men- 
tioned in  the  1st  section,  who  shall  be  guilty  of  a  violation  of  its 
provisions,  shall  be  subject  to  indictment  or  presentment,  in 
the  County  or  Circuit  Court  of  the  county  in  which  said  colored 
person  was  so  received,  and  upon  conviction  thereof,  shall 
be  fined  in  a  sum,  not  less  than  two,  nor  more  than  five  hun- 
dred dollars,  and  be  imprisoned  not  less  than  three,  nor  more 
than  six  months:  and  moreover,  shall  be  liable  to  an  action  of 
trover,  at  the  suit  of  the  owner  or  owners  of  any  slave  or  slaves 
so  received  or  carried  away." 

This  statute  is  highly  penal ;  and  is,  therefore  entitled  to  fair, 
but  not  latitudinous  construction. 

The  evil  intended  to  be  remedied,  was  one  which  resulted, 
no  doubt,  out  of  the  conflict  of  opinion,  in  relation  to  slavery, 
which  has  for  years  existed  between  our  citizens  of  the  free  and 
slave  States,  and  a  disposition  on  the  part  of  the  fanatical  por- 
tion of  the  former,  to  furnish  facilities  and  inducements  to  the 
slaves  of  the  latter,  to  escape  from  their  owners.  These  facili- 
ties are  greatly  increased  on  our  stage  lines  and  water  courses, 


DUNCAN   V.   STATE.  3 

by  the  easy  mode  of  concealment  of  the  absconding  slave,  and 
the  rapidity  with  which  he  can  be  thus  carried  beyond  the  pur- 
suit of  the  owner.  It  was,  therefore,  deemed  proper  to  inflict 
heavy  penalties  upon  those  who  might  furnish  such  facility  to 
an  absconding  slave. 

But  surely  there  could  have  been  no  reason,  or  design,  to  have 
inflicted  such  penalties  upon  a  person,  whose  boat  or  stage  had 
been  the  means  of  affording  the  facility  without  his  knowledge? 

It  is  a  sacred  principle  of  criminal  jurisprudence,  that  the  in- 
tention to  commit  the  crime,  is  of  the  essence  of  the  crime,  and 
to  hold,  that  a  man  shall  be  held  criminally  responsible  for  an 
offence,  of  the  commission  of  which  he  was  ignorant  at  the  time, 
would  be  intolerable  tyranny. 

It  is  right  and  proper,  that  the  commander  of  a  steamboat, 
who  receives  and  carries  off  the  slave  of  another,  should  be  se- 
verely punished.  But  to  hold,  that  he  shall  be  so  punished, 
when  the  boat  has  received  him  and  carried  him  off  without  his 
knowledge  or  consent,  would  be  shocking  to  common  sense. 

By  our  law,  a  man  who  harbors  a  slave,  is  severely  punished. 
But  would  any  one  think  of  punishing  him,  because  a  slave 
clandestinely  entered  and  concealed  himself  in  his  house? 
Surely  not.  Then,  upon  what  principle  can  the  commander  of 
a  steamboat  be  punished  criminally  because  a  slave  has  entered 
his  boat  without  his  knowledge  or  consent,  and  been  carried 
off  by  it?  Surely  by  nothing  but  positive  enactment.  If  this 
enactment  existed,  we  should  have  to  enforce  it,  notwithstand- 
ing our  conviction  of  its  injustice.  But,  we,  upon  a  review  of 
the  statute,  and  a  fair  construction  of  it,  feel  satisfied,  that  it  has 
not  been  so  enacted. 

The  statute  does  not  punish  for  the  mere  act  of  carrying  off, 
but  punishes  for  the  receiving  and  carrying  off.  This  makes 
the  punishment  consistent  with  justice,  for  the  word  receiving, 
necessarily  implies,  an  act  knowingly  done;  for  no  man  can 
receive,  without  his  knowledge  and  consent.  A  man  receives 
a  bribe;  placing  money  in  his  pocket,  without  his  knowledge,  is 
not  such  a  reception. 

This  statute,  then,  requiring,  that  there  shall  be  a  reception 
and  carrying  away  of  the  slave,  to  constitute  the  offence  pro- 
vided against,  both  must  be  alleged  and  proven  before  there 


4  NATURE   AND   ELEMENTS. 

can  be  a  conviction.  The  carrying  away  would  be,  no  doubt, 
///i //i  a  facie  evidence  of  the  reception. 

This  bill  of  indictment  does  not  allege,  that  the  negro  slave 
was  received  by  the  commander  of  the  boat,  but  only  that  he 
was  unlawfully  carried  away;  this  is  not  a  sufficient  allegation 
under  the  statute.  The  word  unlawfully,  cannot  supply  the 
defect;  for  the  carrying  away,  though  without  knowledge,  was 
not  a  legal  act;  and,  therefore,  if  it  be  characterized  by  such  an 
expression,  must  be  called  illegal. 

The  amended  statute,  passed  at  the  same  session,  does  not 
remedy  .this  defect.  It  is  only  to  be  considered  in  the  character 
of  a  legislative  construction  of  the  first  statute.  This  amend- 
ment is  to  be  found  in  the  session  acts  of  1833,  ch.  62.  It  pro- 
vides, that  when  a  slave  conceals  himself  on  board  of  the  boat, 
and  is  carried  off  without  the  knowledge  or  consent  of  the  com- 
mander, he  shall  not  be  liable  to  the  pains  and  penalties  of  the 
statute,  provided  he  deposit  him  in  the  first  and  nearest  county 
jail  to  which  he  may  be  after  he  discovered  the  fact,  and  give 
public  notice  thereof  in  some  convenient  newspaper. 

This  amendment  does  not  create  an  offence,  or  inflict  a  pen- 
alty. And  if  the  construction  given  by  it  to  the  previous  statute 
be  erroneous,  as  we  think  it  is,  it  does  not  enlarge  the  provisions 
of  the  first. 

We  are  the  more  satisfied  with  the  conclusion  we  have  ar- 
rived at,  in  this  case,  because  we  are  convinced  from  the  proof, 
that  the  defendant  in  this  case  has  been  guilty  of  no  misconduct. 
He  did  not  receive  the  negro,  and  when  he  ascertained  that  he 
was  on  board  of  his  boat,  he  made  use  of  all  reasonable  exer- 
tions to  secure  him,  and  he  fled  and  could  not  be  overtaken.  The 
defendant  has  then  been  in  no  default. 

The  bill  of  indictment  being  defective,  the  judgment  will  be 
arrested,  and  the  defendant  discharged. 

TJ.  S.  v.  Pearce,  2  McLean  14;  Gordon  r.  State,  52  Ala.  308;  Slattery 
v.  People,  76  111.  216:  Reg.  r.  Tolson,  23  Q.  B.  D.  168;  Chisholm  v.  Doul- 
ton,  22  L.  R.  Q.  B.  736;  Allen  v.  State,  52  Ala.  391;  Ross  v.  Com.,  2  B. 
Mon.  417;  People  r.  Harris,  29  Cal.  679;  U.  S.  r.  Fox,  95  U.  S.  670; 
Roseberry  r.  State.  50  Ala.  160;  Riley  v.  State,  16  Conn.  47;  Squire 
r.  State.  40  Tnd.  459:  Com.  r.  Mash.  7  Mete.  472;  State  v.  Bohles,  1 
Rice  145;  Rex  r.  Harris,  7  C.  &  P.  428;  Reg.  v.  Allday,  8  C.  &  P.  136; 


UNITED  STATES  V.  TAINTOB.  5 

People  v.  Powell,  63  N.  Y.  88;  State  v.  Do  well,  8  L.  R.  A.  297;  Clark, 
pp.  39,  42;  Bishop  1,  Sec.  287  et  seq.;  Wharton  1,  Sec.  106  et  seq.;  Haw- 
ley  &  McGregor,  p.  25;  The  Penal  Code  of  Pa.;  Shields,  vol.  I.,  207,  390, 
391,  400. 

NOTE.— No  intent  is  necessary  in  statutory  crimes  where  the  prohibi- 
tion is  absolute. 

Com.  v.  Weiss,  139  Pa.  St.  247;  11  L.  R.  A.  530. 

a. 
Kinds. 

(1)  Constructive  Intent. 

The  law  presumes  that  one  intends  the  natural  and  prob- 
able consequences  of  his  acts. 

UNITED  STATES  v.  TAINTOR. 

Supreme  Court  of  the  United  States,  1873. 
11  Blatch  374. 

THE  defendant  was  indicted  under  the  55th  section  of  the 
National  Banking  Act  of  June  3d,  1864  (13  U.  S.  Stat.  at 
Large,  116),  for  embezzling,  abstracting,  and  wilfully  misap- 
plying the  moneys  and  funds  of  the  Atlantic  National  Bank, 
of  which  he  was  cashier,  with  intent  to  injure  and  defraud  the 
association.  The  indictment  contained  numerous  counts  designed 
to  cover  numerous  distinct  transactions,  and  the  several  transac-  • 
tions  were,  by  means  of  distinct  counts,  charged  as  embezzle- 
ments, abstractions,  and  misapplications.  It  was  averred,  in  each 
count  of  the  indictment,  that  the  acts  were  done  with  intent  to 
injure  and  defraud  the  association.  On  the  trial,  before  BENE- 
DICT, J.,  evidence  was  given  to  show  that  the  defendant  took 
moneys  and  funds  of  the  bank,  and  used  them  in  stock  specula- 
tions carried  on  in  his  own  name,  by  depositing  the  same  with  a 
stock-broker,  as  margins  for  stocks  bought,  or  represented  to 
have  been  bought,  on  his  account,  which  were  to  be  held  by  the 
broker  subject  to  his  order,  so  long  as  he  kept  with  the  broker  a 
margin  of  ten  per  cent.  The  defendant  offered  to  prove  that 
these,  his  acts,  were  known  to  the  president  and  some  of  the 


6  NATURE   AND   ELEMENTS. 

directors  of  the  bank,  and  were  sanctioned  by  them,  and  that 
all  his  dealings  with  the  funds  of  the  bank,  of  which  evidence 
had  been  given,  were  intended  for  the  account  and  benefit  of 
the  bank,  and  were  believed  by  him  to  have  been  sanctioned  by 
the  president  and  some  of  the  directors,  although  there  was  no 
resolution  of  the  board  of  directors  authorizing  or  sanctioning 
them.  These  offers  were  not  made  for  the  purpose  of  contradict- 
ing the  proof  of  the  commission  of  the  acts  about  which  testi- 
mony had  been  given,  but  only  to  disprove  the  averments  in  the 
indictment,  that  the  acts  were  done  with  intent  to  injure  and  de- 
fraud the  association.  The  evidence  offered  by  the  defendant 
was  excluded,  and  the  suggestion  being  made  by  the  Court,  that, 
in  case  the  defendant  should  be  advised  to  move  for  a  new  trial, 
to  test  the  correctness  of  the  ruling,  Judges  WOODRUFF  and 
BLATCHFORD  would  be  requested  to  take  part  in  the  hearing  of 
such  motion,  a  motion  for  a  new  trial  was  accordingly  made  and 
heard  by  the  three  judges. 

BENEDICT,  J.  The  ruling  called  in  question  upon  this  motion 
involved  two  propositions,  namely,  that  the  guilty  intent  charged 
in  the  indictment  was  shown  by  the  proof  of  the  acts  done  by 
the  defendant;  and,  further,  that  the  facts  offered  to  be  proved 
by  the  defendant  would  not,  in  law,  avail  to  negative  that  intent. 
It  has  hardly  been  doubted,  upon  this  motion,  that  the  first  of 
these  propositions  is  correct.  The  correctness  of  the  second  is 
strenuously  denied,  and  is  now  to  be  determined. 

It  is  a  general  rule  of  law,  that  a  man  must  be  held  to  intend 
the  necessary  consequences  of  his  acts.  This  rule  is  applicable 
as  well  to  cases  of  crime  as  in  civil  causes,  for,  whatever  proves 
intent  anywhere  proves  it  everywhere.  It  has  often  been  so  ap- 
plied. Furthermore,  in  certain  cases,  and  these  criminal,  the 
proof  of  guilty  intent  afforded  by  evidence  of  acts  knowingly 
done  has  been  held  to  be  conclusive,  and  not  overthrown  by 
proof  of  any  other  facts;  and  this  class  of  cases  has  not  been 
limited  to  acts  mala  in  se,  nor  to  crimes  at  common  law.  On  this 
argument,  it  was  conceded,  that,  by  virtue  of  the  rule  in  ques- 
tion, the  guilty  intent  is  conclusively  shown  by  proof  of  the  act 
done,  where  the  nature  of  the  act  is  such  that  a  general  guilty 
intent  is  so  clearly  manifested  thereby  as  to  admit  of  no  question. 


UNITED   STATES  V.   TAINTOR.  7 

It  appears  to  us,  that  the  rule,  even  thus  limited,  covers  the  pres- 
ent case  and  justifies  the  decision  made  at  the  trial.  For,  the  act 
done  by  the  defendant  was  clearly  unlawful,  and  he  is  precluded 
from  denying  knowledge  that  it  was  so.  He  was  an  officer  of  an 
association  created  under  a  statute  which  does  not  permit  any 
person  to  make  such  a  use  of  the  funds  of  the  association  as  was  here 
made.  Furthermore,  the  act  of  the  defendant  rendered  the  as- 
sociation liable  to  a  forfeiture  of  its  charter.  Still  further,  it 
cast  upon  the  bank  a  risk  which  attached  at  the  instant  of  the 
doing  of  the  act,  and  this  a  risk  notoriously  great,  extraordinary 
in  character,  and  outside  the  bounds  of  proper  commercial  use. 
It  placed  the  capital  of  the  bank  beyond  the  control  of  the  of- 
ficers of  the  association,  and  it  was  an  unlawful  dealing  with  the 
money  of  a  corporation  belonging  to  a  class  of  institutions  whose 
welfare  is  intimately  connected  with  the  public  welfare,  which 
are  liable  to  be  depositaries  of  the  public  moneys,  and  which  can- 
not justly  be  considered  to  be  merely  private  pecuniary  trusts. 
The  act  of  the  defendant,  therefore,  necessarily  involved  injury, 
noil  only  to  the  association,  but  also,  in  a  proper  sense,  to  the 
public.  An  act  having  such  characteristics,  and  involving  such 
consequences,  when  knowingly  done,  discloses  moral  turpitude, 
and  cannot  be  innocent.  It  may,  therefore,  well  be  held,  that 
proof  of  such  an  act  proves  conclusively  an  intent  to  injure,  be- 
cause, when  knowingly  done,  it  affords  no  opportunity  for  justi- 
fication or  legal  excuse,  and  manifests  so  clearly  a  general  cruilty 
intent  as  to  make  it  of  no  consequence  what  other  particular  in- 
tent co-existed  therewith,  and  to  preclude  enquiry  as  to  such 
other  intent,  or  into  the  motives  which  impelled  to  its  commis- 
sion. A  generous  motive  is  not  inconsistent  with  a  guilty  intent, 
and  proof  of  the  one  does  not  disprove  the  other.  Our  opinion, 
therefore,  is,  that  the  circumstances  offered  to  be  proved  by  the 
defendant  would  not  tend  to  disprove  the  guilty  intent  charged 
in  the  indictment. 

But  it  is  contended  that  the  phraseology  of  the  statute  undor 
which  the  indictment  is  framed,  requires  proof  of  something 
more  than  the  general  guilty  intent  necessarily  involved  in  such 
a  misapplication  of  the  funds  of  a  national  bank,  inasmuch  as  it 
couples  with  the  words  "embezzle,  abstract  and  wilfully  mis- 
apply," the  words  "with  intent  to  injure  or  defraud  the  associa- 


8  NATURE   AND   ELEMENTS. 

tion,"  and  thus  requires  the  presence  of  a  corrupt  motive,  a  de- 
sign to  cheat  the  association  out  of  money,  in  order  to  constitute 
the  offence.  It  is  unnecessary  to  determine  whether  the  latter 
words,  as  here  used,  are  intended  to  be  taken  in  connection  with 
the  words  "embezzle,  abstract  or  wilfully  misapply,"  because  this 
has  been  assumed  by  the  prosecution,  and  the  indictment,  in 
each  count,  charges  an  intent  to  injure  and  defraud  the  associa- 
tion. The  question  presented,  therefore,  is  as  to  the  effect  pro- 
duced upon  the  words  "embezzle,  abstract  or  wilfully  misapply," 
by  the  addition  of  the  words  "with  intent  to  injure  or  defraud 
the  association." 

In  considering  this  phraseology,  it  will  be  noticed,  that,  while 
the  word  "embezzle,"  and,  perhaps,  also,  the  word  "abstract," 
refers  to  acts  done  for  the  benefit  of  the  actor  as  against  the 
bank,  the  word  "misapply"  covers  acts  having  no  relation  to  the 
pecuniary  profit  or  advantage  of  the  doer  thereof.  A  design  to 
make  criminal  acts  done  without  reference  to  personal  advantage 
is  thus  clearly  disclosed,  and  it  appears  that  the  intention  of  the 
statute  was  to  cover  cases  of  unlawful  dealing  with  the  funds  of 
the  bank  by  its  officers,  although  without  a  corrupt  motive.  This 
intention,  manifested  by  the  insertion  of  an  emphatic  and  signi- 
ficant term  in  the  commencement  of  the  section,  it  cannot  be 
supposed  wds  intended  to  be  defeated  by  the  subsequent  use  of 
the  words  "with  intent  to  injure  or  defraud."  Nor  can  such  effect 
be  given  these  words  without  treating  the  word  "injure"  as 
synonymous  with  "defraud,"  and  as  referring  to  a  misapplication 
for  the  benefit  of  the  doer.  But,  if  the  signification  of  the  word 
"defraud"  be  limited  to  a  malicious  dealing  with  property  for 
the  personal  advantage  of  the  doer — and  it  is  not  always  to  be 
so  limited — the  word  "injure"  is  not  of  such  limited  application, 
and  was  doubtless  inserted  to  cover  cases  of  misapplication  caus- 
ing injury  to  the  association  without  benefit  to  the  offender.  The 
guilty  intent  required  by  the  statute  would,  therefore,  still  exist, 
although  it  be  shown  that  no  personal  pecuniary  benefit  was 
anticipated  by  the  defendant,  and  the  requirement  of  the  statute 
is  fulfilled  by  proof  of  general  guilty  intent  involved  in  the  act 
knowingly  committed. 

The  phrase  "  intent  to  injure  or  defraud"  is  the  same  one 
used  in  indictments  for  forgery.    There  it  refers  to  a  general 


UNITED  STATES  V.  TAINTOR. 

guilty  intent,  and  such  indictments  are  held  conclusively  proved 
when  the  act  is  proved  to  have  been  knowingly  committed.  The 
phrase  should  be  considered  to  have  the  same  meaning  in  this 
statute,  and  to  be  proved  in  the  same  way.  Nor  does  this  con- 
struction render  the  words  nugatory.  On  the  contrary,  they  are 
given  precisely  the  same  effect  which  they  are  held  to  have  in 
indictments  where  their  presence  has  been  considered  to  be 
necessary.  A  similar  effect  has  been  given  to  this  same  phrase 
in  other  statutes.  Thus  Lord  Ch.  J.  Tindal  has  observed,  that, 
"where  a  statute  directs  that,  to  complete  an  offence,  it  must  have 
been  done  with  intent  to  injure  or  defraud  any  person,  there  is 
no  occasion  that  any  malice  or  ill-will  should  subsist  against  the 
person  whose  property  is  so  destroyed.  It  is  a  malicious  act  in 
contemplation  of  law,  when  a  man  wilfully  does  that  which  is 
illegal,  and  which,  in  its  necessary  consequence,  must  injure  his 
neighbor."  (5  C.  &  P.,  266,  note;  2  Russ.  on  Crimes,  p.  575; 
Com.  v.  Snelling,  15  Pick.,  340.)  It  is,  indeed,  true,  that  this 
•construction  of  the  statute  under  consideration  imputes  to  the 
legislature  the  policy  of  making  some  acts  criminal  which  may 
not  have  been  before  classed  as  crimes;  and  if,  as  it  seems  to  be 
here  suggested,  the  moral  sense  of  the  business  community  has  be- 
come so  blunted  that  such  acts  as  this  defendant  is  conceded  to 
have  committed  have  come  to  be  considered  "innocent  or  even 
praiseworthy,"  the  urgent  need  of  the  adoption  of  such  a  policy 
affords  good  ground  for  supposing  that  its  adoption  was  intended 
by  the  statute. 

Our  opinion,  therefore,  is,  that  no  error  was  committed  in 
rejecting  the  evidence  offered  by  the  defence  upon  the  trial  of 
this  cause;  and  the  motion  for  a  new  trial  must,  accordingly,  be 
denied. 


State  v.  Goodenow,  65  Me.  30;  Reynolds  v.  U.  S.,  98  U.  S.  145;  Com. 
t?.  Webster,  5  Gush.  295;  Com.  v.  Mink,  123  Mass.  422;  State  v.  Barrett, 
40  Minn.  65  &  77;  Felton  v.  U.  S.,  96  U.  S.  699;  The  Ambrose  Light, 
25  Fed.  Rep.  408;  U.  S.  v.  Baldridge,  11  Fed.  Rep.  552;  Com.«t\  Murphy, 
42  N.  E.  504;  State  v.  Skidmore,  87  N.  C.  509;  Ware  v.  Georgia,  67  Ga. 
349;  State  v.  Lautenschlager,  22  Minn.  514;  State  v.  Oilman,  69  Me. 
163;  Com.  v.  McGorty,  114  Mass.  299;  Wareham  v.  State,  25  Ohio  St. 
601;  Angell  v.  State,  36  Tex.  542;  but  see  Filklns  v.  People,  69  N.  Y. 
101;  Clark,  p.  48;  Bishop  I.,  Sec.  31  et  seq;  Hawley  &  McGregor,  p.  27. 


10  NATURE   AND   ELEMENTS. 


(2)  Specific  Intent. 

A  specific  intent  being  an  essential  ingredient  of  the  crime, 
it  will  not  be  presumed  but  must  be  proved. 

MILLEB  v.  THE  PEOPLE. 

Supreme  Court  of  New  York,  1849. 
5  Barb.  203. 

By  the  Court,  HUELBUT,  P.  J.  The  defendants  were  indicted 
for  that  being  scandalous  and  evil  disposed  persons,  and  con- 
triving and  intending  the  morals  of  divers  good  and  worthy  citi- 
zens to  debauch  and  corrupt,  on  the  twelfth  day  of  July,  1847, 
at  the  city  and  county  of  New  York,  in  the  presence  of  divers 
good  and  worthy  citizens  of  this  State  then  and  there  being,  in 
a  public  manner,  unlawfully,  scandalously  and  wickedly  did  ex- 
pose to  the  view  of  the  said  persons  so  present,  the  bodies  and 
persons  of  them,  the  said  defendants,  naked  and  uncovered,  for 
the  space  of  one  hour,  to  the  manifest  corruption  of  good 
morals,  &c. 

The  evidence  shows  that  the  defendants,  early  in  the  morn- 
ing of  the  day  stated,  went  out  of  their  house  into  the  back  yard 
of  the  premises  which  they  occupied,  without  having  completed 
their  toilette.  The  witness,  Deere,  testified  that  while  he  was  out 
looking  at  flowers  he  discovered  that  one  of  them  was  not  dressed 
— that  all  his  clothes  were  off  but  his  under  garment,  and  that 
in  fact,  he  stood  in  his  shirt  near  the  back  door  of  his  house. 
The  other  defendant  walked  in  the  yard  with  his  shirt  on,  and 
with  his  clothes  down  about  his  feet.  Mrs.  Deere  was  on  the 
alert  and  called  her  husband's  attention  to  this  circumstance. 
The  defendants  were  shown  to  have  been  bachelors,  advanced 
in  years,  and  entertained  no  females  about  their  premises.  There 
was  a  fence  about  five  feet  high  surrounding  the  yard  in  which 
the  offence  was  alleged  to  have  been  committed.  But  two  or 
three  persons  were  so  unfortunate  as  to  have  observed  the  con- 
duct complained  of;  and  there  was  no  satisfactory  evidence  to 


MILLER  V.   THE  PEOPLE.  11 

show  that  the  defendants  supposed  they  were  seen  by  any  body, 
or  that  they  intended  to  expose  their  persons  to  the  public  view. 
Excepting  two  houses  there  were  no  dwellings  within  a  quarter 
of  a  mile  of  their  residence.  The  weather  was  probably  warm, 
and  it  would  seem  that  the  defendants  did  not  nicely  consider  of 
the  fitness  of  their  apparel.  Mr.  Deere,  who  complained,  being 
on  bad  terms  with  them,  appears  to  have  watched  their  conduct 
narrowly.  The  defendants  were  shown  to  be  inoffensive,  labor- 
ing men,  of  fair  moral  character.  They  were,  however,  convicted 
and  sentenced,  each  to  pay  a  fine  of  two  hundred  dollars,  and  to 
stand  committed  till  it  should  be  paid. 

The  recorder  charged  the  jury,  in  substance,  that  the  evidence 
was  positive  as  to  the  offence  charged  having  been  committed; 
that  they  were  to  find  if  the  defendants  had  committed  the  of- 
fence charged  in  a  manner  to  openly  outrage  decency;  that  as  to 
the  intent,  the  acts  showed  the  intent;  and  if  they  were  proved 
that  was  all  that  was  necessary.  That  any  acts  that  were  in- 
jurious to  good  morals,  and  openly  violated  decency,  were  mis- 
demeanors at  common  law.  There  was  a  general  exception  to 
this  charge. 

It  is  a  general  principle  of  evidence  that  a  man  shall  be  taken 
to  intend  that  which  he  does,  or  which  is  the  immediate  and 
natural  consequence  of  his  act.  But  where  an  act  in  itself  in- 
different becomes  criminal  if  it  be  done  with  a  particular  intent, 
then  the  intent  must  be  alleged  and  proved.  The  intent  in  the 
present  case  was  a  material  ingredient  in  the  offence,  and  was  a 
question  of  fact,  under  all  the  circumstances,  for  the  considera- 
tion of  the  jury.  It  was  for  them  to  find  whether  there  had  been 
an  intentional,  wanton  and  indecent  exposure  of  the  persons  of 
the  defendants,  at  such  a  time  and  place,  and  in  such  a  manner, 
as  to  offend  against  public  decency.  The  charge  withdrew  this 
from  the  consideration  of  the  jury  as  a  question  of  fact.  The 
jury  were  told  that  the  evidence  was  positive  as  to  the  offence 
having  been  committed,  and  in  effect  that  if  the  acts  were  proved 
the  defendants  were  guilty.  This  was  erroneous,  and  as  the  sub- 
stance of  the  charge  is  open  to  this  objection,  we  think  the  de- 
fendants may  avail  themselves  of  it  by  a  general  exception. 

The  judgment  of  the  general  sessions  must  be  reversed,  and  a 
venire  de  novo  awarded. 


12  NATURE   AND    ELEMENTS. 

State  v.  Eaton,  3  Harr.  554;  Com.  r.  Walden,  3  Cush.  558;  Hairston 
v.  State,  54  Miss.  680;  Com.  v.  Merrill,  14  Gray  415;  Com.  v.  Hersey, 
2  Allen  173;  Cortland  Co.  v.  Herkimer  Co.,  44  N.  Y.  22;  McGehee 
v.  State,  62  Miss.  772;  State  v.  Bell,  29  la.  316;  State  v.  Butman,  42  N. 
H.  490;  Maher  p.  People,  10  Mich.  212;  Rex  v.  Knight,  2  East  P.  C.  510; 
Mullins  v.  State,  37  Tex.  337;  Rex  v.  Boyce,  1  Moody  29;  Simpson  v. 
State,  59  Ala.  1;  Roberts  v.  People,  19  Mich.  401;  McKay  v.  State,  44 
Tex.  43;  Clark,  p.  43,  46,  47,  48;  Bishop  I.,  Sec.  731-736;  Wharton  1,  377 
et  seq;  Hawley  &  McGregor,  p.  36. 


(3)  Motive. 

Motive,  the  ultimate  object  as  distinguished  from  the 
intent,  the  immediate  purpose,  is  never  a  material  element 
in  a  crime.  The  act  being  forbidden,  it  is  immaterial  with 
what  motive  it  is  done. 

UNITED  STATES  v.  HARMON. 

United  States  District  Court,  District  of  Kansas,  1891. 
45  Fed.  Rep.  414. 

THIS  is  an  indictment  for  depositing  an  obscene  publication  in 
the  United  States  post-office  in  violation  of  the  provisions  of  sec- 
tion 3893,  Rev.  St.  U.  S.  (25  St.  p.  496).  The  prosecution 
grew  out  of  the  following  state  of  facts:  The  defendant  is  the 
editor  and  publisher  of  a  newspaper  at  Valley  Falls,  Kan.,  en- 
titled "Lucifer,  the  Light  Bearer."  It  is  a  paper  of  singularity. 
The  issue  in  question  is  dated  "February  14,  E.  M.  291."  It  be- 
gins its  date  from  1st  of  January,  1501,  which  he  calls  the  be- 
ginning of  the  era  of  man.  Its  platform  or  motto  is:  "Perfect 
freedom  of  thought  and  action  for  every  individual  within  the 
limits  of  his  own  personality.  Self-government  the  only  true 
government.  Liberty  and  responsibility  the  only  basis  of  moral- 
ity." The  paper  contains  some  general  news  and  advertisements, 
but  its  specialty  is  the  discussion  of  sexual  relation,  and  a  por- 
trayal of  its  excesses  and  abuses.  As  side-boards  to  this  matter, 
it  teems  with  homilies  and  essays  on  the  liberty  of  individual 
conscience,  and  the  liberty  of  speech  and  of  the  public  press.  On 


UNITED   STATES  V.   HARMON.  13 

the  date  above  given,  which  is,  according  to  the  common  calen- 
dar, the  14th  of  February,  1890,  this  paper  contained  an  article 
of  over  a  column,  headed,  "A  Physician's  Testimony,"  purport- 
ing to  be  written  by  one  "Richard  V.  O'Neill,  M.  D.,"  of  330 
East  Seventieth  street,  New  York.  This  communication  sets  out 
with  much  particularity  various  instances  falling  within  his  pro- 
fessional experience  and  practice  of  abuses  of  women  by  their 
husbands  in  coercive  cohabitation ;  of  family  habits  of  men,  boys, 
and  girls,  gratifying  an  unnamable  propensity  of  the  father,  and 
the  unnatural  intercourse  between  a  man  and  beasts.  These  acts 
are  described  in  blunt,  coarse  terms,  too  indecent  and  filthy  to  be 
here  given  in  hcec  verba.  The  pleader,  however,  has  set  the  whole 
article  out  in  exact  words  in  the  indictment.  At  the  trial  the 
government  and  defendant  waived  a  jury,  and  submitted  the 
case  to  the  court  to  try  both  the,  questions  of  fact  and  law.  It 
was  admitted  that  the  defendant  placed  the  newspaper  contain- 
ing this  publication  in  the  United  States  post-office  for  transmis- 
sion to  the  party  to  whom  it  was  directed,  knowing  that  it  con- 
tained this  communication.  It  was  also  admitted  that  the  de- 
fendant has  about  1500  regular  subscribers  to  this  paper,  em- 
bracing heads  of  families,  scattered  through  the  State  and 
elsewhere  in  the  United  States.  The  defendant  was  permitted  to 
testify  as  to  his  motive  in  publishing  such  articles,  for  the  pur- 
pose of  showing,  as  claimed  by  his  counsel,  that  he  was  actuated 
solely  by  a  purpose  to  improve  the  sexual  habits,  to  correct  its 
abuses,  and  thereby  better  the  human  race ;  and  that  in  all  other 
relations  of  life  he  bore  a  good  character  as  a  peaceable,  well- 
conducted  citizen.  He  is  a  married  man,  living  in  wedlock  with 
his  second  wife,  having  been  divorced  from  the  first.  He  is  now 
about  sixty  years  of  age. 

PHILIPS,  J.  Objection  to  the  Indictment. — Both  at  the  hear- 
ing and  on  the  argument  of  the  law  and  the  facts  objection  was 
made  to  the  sufficiency  of  the  indictment.  The  court  might,  per- 
haps, with  propriety  pass  upon  this  objection  here,  but  it  is  al- 
ways best  that  a  case  should  be  determined  according  to 
well-settled  rules  of  procedure.  At  common  law,  objection  to 
the  sufficiency  of  the  indictment  must  be  taken  prior  to  trial  by 
motion  to  quash  or  demurrer.  If  not  then  interposed,  it  must 


14  NATURE  AND   ELEMENTS. 

come  after  trial  by  motion  in  arrest.  1  "Whart.  Grim.  Law  (7th 
Ed.)  Sees.  519,  524,  525.  While  under  the  Code  of  this  State 
the  sufficiency  of  the  petition  or  pleading  in  civil  cases  may  be 
raised  on  the  trial  by  objecting  to  the  introduction  of  any  evi- 
dence in  support  of  it,  it  has  been  expressly  held  by  the  Supreme 
Court  of  Missouri,  under  a  similar  Code,  that  this  rule  of  prac- 
tice has  no  application  to  criminal  proceedings.  State  v.  Risley, 
72  Mo.  609. 

The  Constitutionality  of  the  Act  of  Congress. — It  is  next  ob- 
jected that  the  act  of  Congress  under  which  this  indictment  was 
founded  is  in  contravention  of  the  first  amendment  of  the  fed- 
eral constitution,  which  declares  that  "Congress  shall  make  no 
law  *  abridging  the  freedom  of  speech  or  of  the 

press."  Counsel  has  urged  this  objection  with  such  force  and 
vigor  of  reasoning  as  to  entitle  it  to  serious  consideration  under 
other  conditions  than  those  which  exist.  The  constitutionality  of 
the  act  in  question  has  been  affirmed  by  the  court  of  last  resort 
in  the  case  of  Ex  parte  Jackson,  96  U.  S.  727.  It  is  true,  the 
direct  question  there  presented  was  as  to  that  branch  of  the  stat- 
ute denying  the  use  of  the  mails  to  lottery  circulars,  etc. ;  but  the 
opinion  of  the  court  proceeds  on  the  theory  that  the  provision  of 
the  statute  respecting  lotteries  is  so  closely  allied  to  that  declar- 
ing obscene  literature  non-mailable  matter  that  it  must  rest  upon 
the  same  principle,  and  thereupon  proceeds  to  discuss  the  latter 
feature  of  the  statute,  and  to  uphold  its  constitutionality.  Until 
overruled,  this  decision  must  control  the  action  of  this  court.  In 
view,  however,  of  the  fact  that  the  defendant  places  so  much 
stress  along  the  line  of  his  entire  defence  on  the  liberty  which 
should  be  accorded  to  the  press,  it  may  as  well  be  said  here  as 
elsewhere  that  it  is  a  radical  misconception  of  the  scope  of  the 
constitutional  protection  to  indulge  the  belief  that  a  person  may 
print  and  publish,  ad  libitum,  any  matter,  whatever  the  sub- 
stance or  language,  without  accountability  to  law.  Liberty  in  all 
its  forms  and  assertions  in  this  country  is  regulated  by  law.  It  is 
not  an  unbridled  license.  Where  vituperation  or  licentiousness 
begins,  the  liberty  of  the  press  ends.  While  the  genius  of  our 
institutions  of  government  accords  the  largest  liberality  in  the 
utterance  of  private  opinion,  and  the  widest  latitude  in  polemics, 


UNITED   STATES   V.   HARMON.  15 

touching  questions  of  social  ethics,  political  and  domestic  econ- 
omy, and  the  like,  it  must  ever  be  kept  in  mind  that  this  invalu- 
able privilege  is  not  paramount  to  the  golden  rule  of '  every 
civilized  society,  sic  utere  tuo  ui  non  alienum  Icedas, — "so  exer- 
cise your  own  freedom  as  not  to  infringe  the  rights  of  others  or 
the  public  peace  and  safety."  2  Story  Const.  Sec.  1888.  While 
happily  we  have  outlived  the  epoch  of  censors  and  licensors  of 
the  press,  to  whom  the  publisher  must  submit  his  matter  in  ad- 
vance, responsibility  yet  attaches  to  hir,  when  he  transcends  the 
boundary  line  where  he  outrages  the  common  sense  of  decency, 
or  endangers  the  public  safety.  As  said  by  that  eminent  jurist, 
Judge  Story  (Id.  Sees.  1884-1887:) 

"There  is  a  good  deal  of  loose  reasoning  on  the  subject  of  the 
liberty  of  the  press,  as  if  its  inviolability  were  constitutionally 
such  that,  like  the  king  of  England,  it  could  do  no  wrong,  and 
was  free  from  every  inquiry,  and  afforded  a  perfect  sanctuary 
for  every  abuse;  that,  in  short,  it  implied  a  despotic  sovereignty 
to  do  every  sort  of  wrong  without  the  slightest  accountability  to 
private  or  public  justice.  Such  a  notion  is  too  extravagant  to  be 
held  by  any  sound  constitutional  lawyer,  with  regard  to  the 
rights  and  duties  belonging  to  governments  generally  or  to  the 
State  governments  in  particular.  If  it  were  admitted  to  be  cor- 
rect, it  might  be  justly  affirmed  that  the  liberty  of  the  press  was 
incompatible  with  the  permanent  existence  of  any  free  govern- 
vment.  *  *  *  In  short,  is  it  contended  that  the  liberty  of 
the  press  is  so  much  more  valuable  than  all  other  rights  in  so- 
ciety that  the  public  safety,  nay,  the  existence  of  the  govern- 
ment itself,  is  to  yield  to  it?  It  would  be  difficult  to  answer  these 
questions  in  favor  of  the  liberty  of  the  press  without  at  the  same 
time  declaring  that  such  a  license  belonged  and  could  belong 
only  to  a  despotism,  and  was  utterly  incompatible  with  the  prin- 
ciples of  a  free  government." 

In  a  government  of  law  the  law-making  power  must  be  recog- 
nized as  the  proper  authority  to  define  the  boundary  line  between 
license  and  licentiousness,  and  it  must  likewise  remain  the  prov- 
ince of  the  jury — the  constitutional  triers  of  the  fact — to  de- 
termine when  that  boundary  line  has  been  crossed. 


NATURE   AND   ELEMENTS. 

The  Test  of  Obscenity,  etc. — The  language  of  the  statute  (sec- 
tion 3893,  p.  496,  25  St.  at  Large)  is  as  follows: 

"Every  obscene,  lewd,  or  lascivious  book,  pamphlet,  picture, 
paper,  letter,  writing,  print,  or  other  publication  of  an  indecent 
character,  *  are  hereby  declared  to  be  non-mailable 

matter,  and  shall  not  be  conveyed  in  the  mails,  nor  delivered 
from  any  post-office,  nor  by  any  letter  carrier;  and  any  person 
who  shall  knowingly  deposit,  or  cause  to  be  deposited,  for  mail- 
ing or  delivery,  anything  declared  by  this  section  to  be  non-mail- 
able  matter,  and  any  person  who  shall  knowingly  take  the  same, 
or  cause  the  same  to  be  taken,  from  the  mails  for  the  purpose  of 
circulating  or  disposing  or  aiding  in  the  circulation  or  disposition 
of  the  same,  shall,"  etc. 

The  statute  does  not  undertake  to  define  the  meaning  of  the 
terms  "obscene,"  etc.,  further  than  may  be  implied  by  the  suc- 
ceeding phrase,  "or  other  publication  of  an  indecent  character." 
On  the  well-recognized  canon  of  construction  these  words  are 
presumed  to  have  been  employed  by  tho  law-maker  in  their  ordi- 
nary acceptation  and  use.  As  they  cannot  be  said  to  have  ac- 
quired any  technical  significance  as  applied  to  some  particular 
matter,  calling,  or  profession,  but  are  terms  of  popular  use,  the 
court  might  perhaps  with  propriety  leave  their  import  to  the 
presumed  intelligence  of  the  jury.  A  standard  dictionary  says 
that  "obscene"  means  "offensive  to  chastity  and  decency;  express- 
ing or  presenting  to  the  mind  or  view  something  which  delicacy, 
purity,  and  decency  forbid  to  be  exposed."  This  mere  dictionary 
definition  may  be  extended  or  amplified  by  the  courts  in  actual 
practice,  preserving,  however,  its  essential  thought,  and  having 
always  due  regard  to  the  popular  and  proper  sense  in  which  the 
legislature  employed  the  term.  Chief  Justice  Cockburn,  in  Kex 
v.  Hicklin,  L.  R.  3  Q.  B.  360,  said:  "The  test  of  obscenity  is 
this:  Where  the  tendency  of  the  matter  charged  as  obscene  is 
to  deprave  and  corrupt  those  whose  minds  are  open  to  such  im- 
moral influences,  and  into  whose  hands  a  publication  of  this  sort 
may  fall;"  and  where  "it  would  suggest  to  the  minds  of  the  young 
of  either  sex,  or  even  to  persons  of  more  advanced  years, 
thoughts  of  the  most  impure  and  libidinous  character."  So,  also, 


UNITED  STATES   V.   HARMON.  17 

it  has  been  held  that  a  book  is  obscene  "which  is  offensive  to  de- 
cency or  chastity,  which  is  immodest,  which  is  indelicate,  impure,, 
causing  lewd  thoughts  of  an  immoral  tendency."  U.  S.  v.  Ben- 
nett, 16  Blatchf.  338.  Judge  Thayer,  in  U.  S.  v.  Clarke,  38  Fed. 
Kep.  732,  observed: 

"The  word  'obscene'  ordinarily  means  something  which  is  of- 
fensive to  chastity;  something  that  is  foul  or  filthy,  and  for  that 
reason  is  offensive  to  pure-minded  persons.  That  is  the  meaning 
of  the  word  in  the  concrete;  but  when  used,  as  in  the  statute,  to 
describe  the  character  of  a  book,  pamphlet,  or  paper,  it  means 
containing  immodest  and  indecent  matter,  the  reading  whereof 
would  have  a  tendency  to  deprave  and  corrupt  the  minds  of  those 
into  whose  hands  the  publication  might  fall  whose  minds  are 
open  to  such  immoral  influences." 

Laws  of  this  character  are  made  for  society  in  the  aggregate, 
and  not  in  particular.  So,  while  there  may  be  individuals  and 
societies  of  men  and  women  of  peculiar  notions  or  idiosyncrasies, 
whose  moral  sense  would  neither  be  depraved  nor  offended  by 
the  publication  now  under  consideration,  yet  the  exceptional 
sensibility,  or  want  of  sensibility,  of  such  cannot  be  allowed  as  a 
standard  by  which  its  obscenity  or  indecency  is  to  be  tested. 
Rather  is  the  test,  what  is  the  judgment  of  the  aggregate  sense 
of  the  community  reached  by  it?  What  is  its  probable,  reason- 
able effect  on  the  sense  of  decency,  purity,  and  chastity  of  so- 
ciety, extending  to  the  family,  made  up  of  men  and  women, 
young  boys  and  girls, — the  family,  which  is  the  common  nursery 
of  mankind,  the  foundation  rock  upon  which  the  State  reposes?' 
The  question  was  asked  with  eloquent  energy  by  the  learned 
counsel,  commenting  on  the  term  "deemed"  to  be  obscene,  as; 
employed  by  Mr.  Justice  Field  in  Ex  parte  Jackson,  supra: 
Who  is  to  deem,  who  is  to  judge,  whether  a  .given  publication* 
impinges  upon  the  general  sense  of  decency?  Shall  every  post- 
master have  the  power  to  deem  the  matter  injurious  to  the  pub- 
lic morals?  Shall  one  postmaster  deem  a  thing  injurious  and  an- 
other harmless,  and  shall  the  freedom  of  the  press  be  at  the 
mercy  of  an  indifferent  lot  of  postmasters  exercising  no  respons- 
ible discretion?  The  answer  to  this  is,  that  asserted  violations  of 
2 


18  NATURE   AND   ELEMENTS. 

this  statute,  like  other  criminal  statutes,  must  be  left  to  the  final 
arbiter  under  our  system  of  government, — the  courts.  The  jury, 
the  legally  constituted  triers  of  the  fact  under  the  constitution, 
is  to  pass  upon  the  question  of  fact.  Under  our  institutions  of 
government  the  panel  of  twelve  are  assumed  to  be  the  best  and 
truest  exponents  of  the  public  judgment  of  the  common  sense. 
Their  selection  and  constitution  proceed  upon  the  theory  that 
they  mostly  nearly  represent  the  average  intelligence,  the  com- 
mon experience  and  sense,  of  the  vicinage;  and  these  qualifica- 
tions they  are  presumed  to  carry  with  them  into  the  jury-box, 
and  apply  this  average  judgment  to  the  law  and  the  facts.  Sit- 
ting as  the  court  does  in  this  case,  in  the  stead  of  the  jury,  it  may 
not  apply  to  the  facts  its  own  method  of  analysis  or  process  of 
reasoning  as  a  judge,  but  should  try  to  reflect  in  its  findings  the 
common  experience,  observation,  and  judgment  of  the  jury  of 
average  intelligence.  How  would  the  language — the  subject- 
matter — in  this  article  from  the  pen  of  "Kichard  V.  O'Neill, 
M.  D."  impress  and  affect  the  average  man  and  woman  of  in- 
telligence and  sensibility?  What  is  its  probable  effect  upon  so- 
ciety in  general?  How  would  such  language  and  matter  impress 
a  public  assembly  of  decent  men  and  women?  How  would  it  be 
received  in  and  affect  theaverage  family  circle  of '1500  subscribers 
to  whom. the  evidence  shows  this  garbage  was  sent?  The  subjects 
discussed  and  the  language  employed  are  too  coarse  and  indecent 
for  the  man  of  average  education  and  refinement  to  recapitulate. 
They  are  so  filthy  in  thought  and  impure  in  terms  as  not  to  ad- 
mit of  recitation  without  a  shock  to  the  common  sense  of  decency 
and  modesty;  and  it  does  seem  to  me  that  it  is  not  too  much  to 
say  that  no  ordinary  mind  can  subject  itself  to  the  repeated  read- 
ing and  contemplation  of  such  subjects  and  language  without  the 
risk  of  becoming  indurated  to  all  sense  of  modesty  in  speech  and 
chastity  in  thought.  The  appetite  for  such  literature  increases 
with  the  feeding.  The  more  it  is  pandered  to,  the  more  insati- 
able its  craving  for  something  yet  more  vicious  in  taste.  And 
while  it  may  be  conceded  to  the  contention  of  counsel  that  the 
federal  government,  under  its  contitutional  limitations,  ought 
not  to  take  upon  itself  the  office  of  censor  morum,  nor  undertake 
to  legislate  in  regulation  of  the  private  morals  of  the  people,  yet 
Congress 'may,  as  the  basis  of  legislation  of  this  character,  have 


UNITED   STATES   V.   HARMON.  19 

regard  to  the  common  consensus  of  the  people  that  a  thing 
is  malum  in  se, — is  hurtful  to  the  public  morals, — endangering 
the  public  welfare,  and  therefore  deny  to  it  as  a  vehicle  of  dis- 
semination the  use  of  its  post-offices  and  post-roads,  devised  and 
maintained  by  the  government  at  the  public  expense  for  the  pur- 
pose of  promoting  the  public  welfare  and  common  good. 

The  Criminal  Intent. — We  are  next  confronted  with  the  prin- 
cipal contention  of  the  defendant,  that  the  act — the  thing  done 
by  him — is  wanting  in  the  criminal  intent  which,  as  he  contends, 
qualifies  every  criminal  offence,  especially  one  rising  to  the  de- 
gree of  a  felony.  The  argument  is  that  if  the  offence  in  question 
is  completed  by  the  mere  overt  act  of  knowingly  placing  in  the 
post-office  an  obscene  print,  publication,  etc.,  it  would  subject 
to  indictment  and  punishment  the  judge  of  this  circuit  for  send- 
ing the  indictment  herein  containing  the  forbidden  publication, 
sent  him  through  the  mail  by  mistake,  back  to  the  clerk  of  the 
court  through  the  mails,  or  that  such  a  publication  made  in  a  law 
book  as  a  report  of  this  case  would  subject  the  publisher  to  the 
penalty  of  the  law  for  mailing  it  to  his  subscribers;  that  as  the 
overt  act  of  the  judge,  for  instance,  can  only  be  exonerated  in 
law  by  proof  of  the  absence  of  criminal  intent,  the  rule  of  ex- 
ception must  be  indifferently  applied;  so  that  in  every  case  the 
question  of  intent,  motive,  purpose,  must  be  open  to  inquiry; 
and  if  there  was  no  evil  design,  no  animus  mali,  the  jury  should 
be  directed  to  acquit.  The  deduction  from  this  particularizi.tion,  has 
for  its  postulate  a  radical  misconception  of  the  postal  organization, 
and  the  scope  and  policy  of  the  law  touching  obscene  literature. 
The  government  is  authorized,  not  commanded,  by  the  constitu- 
tion to  maintain  post-offices  and  post-roads.  The  systentis  organized 
and  maintained  by  the  government  on  the  public  responsibility, 
solely  for  the  purpose  of  promoting  the  public  welfare,  in  facil- 
itating business,  commercial,  and  social  intercourse.  It  is  de- 
signed to  aid  legitimate  business,  and  not  such  as  is  calculated 
directly  to  corrupt  the  public  morals,  and  sap  the  foundations  of 
society  and  government.  Having  the  right  to  establish  or  dis- 
establish post-offices  and  post-roads,  just  as  the  public  interests 
may  require,  Congress  may  say  to  what  extent  the  public  or  any 
individual  may  use  them,  and  for  what  purpose,  and  may  there- 


20  NATURE  AND   ELEMENTS. 

fore  limit  both  the  quantity  and  the  quality  of  the  matter  sent 
through  the  mails.  The  public  officer,  like  a  judge,  who  commits 
to  the  mails  an  indictment  containing  the  vicious  publication  in 
question  in  the  performance  of  an  official  duty  connected  there- 
with, and  in  the  administration  of  public  justice,  is  employing 
the  mails  within  the  purview  of  the  object  of  the  constitution. 
Such  a  user  must,  ex  necessitate  rei,  be  held  by  the  courts  to  be 
the  exception  to  the  letter  of  the  statute  arising  from  necessary 
implication,  as  much  so  as  in  the  case  of  the  Bolognian  law, 
which  enacted  "that  whoever  drew  blood  in  the  streets  should  be 
punished  with  the  utmost  severity."  It  was  held  not  to  apply  to 
the  surgeon  who  opened  a  vein  of  a  person  in  order  to  save  his 
life  when  he  had  fallen  in  the  street  in  a  fit.  And  again,  it  is 
obvious  from  the  whole  context  of  the  act  of  Congress  in  ques- 
tion, as  well  as  the  popular  history  attending  its  enactment,  that 
it  was  leveled  at  the  circulation  and  disposition  of  the  forbidden 
matter  as  such  in  its  relation  to  society.  It  is  to  prevent  the  sup- 
posed hurtful  effect  of  the  receiving  and  reading  of  such  indecent 
literature  published  as  such  by  declaring  it  non-mailable,  and 
the  statute  should  be  so  construed  by  the  courts  as  to  effectuate 
the  legislative  intent.  "When  the  true  intention  is  accurately 
ascertained,  it  will  always  prevail  over  the  literal  sense  of  the 
terms.  The  occasion  and  necessity  of  the  law,  the  mischief  felt, 
and  the  object  and  remedy  in  view,  are  to  be  considered.  A  thing 
within  the  intent  of  the  legislature  in  framing  the  statute  is 
sometimes  as  much  within  the  statute  as  if  it  were  within  the 
latter.  In  re  Bomino,  83  Mo.  441.  It  is  too  much  to  claim 
that  statutes  of  a  highly  penal  character  must  universally  require 
proof  of  the  existence  of  a  criminal  intent  in  the  violator,  in  the 
broad  sense  of  that  term.  There  is  a  recognized  class  of  offences 
where  the  thing  done  is  hurtful,  and  the  probable  consequences 
may  be  injurious,  where  "the  intention  is  inferred  from  doing 
the  act."  As  said  by  Blackburn,  J.,  in  Rex  v.  Hicklin,  supra: 
"If  the  party  does  an  act  which  is  illegal,  it  does  not  make  it 
legal  that  he  did  it  with  some  other  object."  This  doctrine  was 
applied  in  Reg.  v.  Dickson,  3  Maule  &  S.  11,  to  the  instance 
where  a  man  gave  to  children  unwholesome  bread,  but  without 
any  intent  to  harm  them;  and  in  Reg.  v.  Yantandillo,  4  Maule 
&  S.  73,  where  a  person  carried  a  child  suffering  from  a  con- 


UNITED  STATES  V.   HARMON.  21 

tagious  disease  along  a  public  highway,  endangering  the  health 
of  all  passing  along,  it  was  held  to  be  a  misdemeanor  without  any 
allegation  or  proof  that  the  defendant  intended  that  anybody 
should  catch  the  disease.  In  Com.  v.  Mash,  7  Mete.  (Mass.)  472, 
the  party  was  indicted  and  convicted  for  bigamy,  where  the  de- 
fendant sought  to  show  that  her  husband  had  absented  himself 
for  a  great  length  of  time,  and  she  had  remarried  under  the 
honest  belief  that  he  was  dead.  Chief  Justice  Shaw,  inter  alia, 
said: 

"It  was  urged  in  the  argument  that  where  there  is  no  criminal 
intent  there  can  be  no  guilt,  and  if  the  former  husband  was 
honestly  thought  to  be  dead  there  could  be  no  criminal  intent. 
The  proposition  stated  is  undoubtedly  correct  in  a  general  sense, 
but  the  conclusion  drawn  from  it  in  this  case  by  no  means  fol- 
lows. "Whatever  one  voluntarily  does  he,  of  course,  intends  to 
do.  If  the  statute  has  made  it  criminal  to  do  any  act  under 
particular  circumstances,  the  party  voluntarily  doing  that  act  is 
chargeable  with  the  criminal  intent  of  doing  it." 

This  statute  was  predicated  of  the  vast  importance  to  society 
of  preventing  polygamy.  In  Com.  v.  Emmons,  98  Mass.  6,  the 
defendant  was  indicted  and  convicted  for  admitting  a  minor  to 
his  billiard  room  without  the  written  consent  of  his  parents.  He 
sought  to  acquit  himself  of  the  act  by  showing  that  the  defend- 
ant was  almost  of  age,  was  fully  grown,  doing  business  for  him- 
self, and  that  he  honestly  believed  that  he  was  of  age.  The  court 
says  that  this  evidence  is  immaterial.  "The  prohibition  of  the 
statute  is  absolute.  The  defendant  admitted  him  to  his  room  at 
his  peril,  and  is  liable  to  the  penalty  whether  he  knew  him  to  be 
a  minor  or  not.  The  offence  is  of  that  class  where  knowledge  or 
guilty  intent  is  not  an  essential  ingredient  in  its  commission,  and 
need  not  be  proved."  And  on  the  same  principle  it  is  held  by 
the  Supreme  Court  of  Missouri,  in  Beckham  v.  Nacke,  56  Mo. 
546,  that  a  magistrate  performing  the  marriage  ceremony  of  a 
minor  without  the  consent  of  his  parents  was  liable  to  the  penalty 
of  the  statute,  although  he  acted  under  a  bona  fide  belief  that  the 
minor  was  of  full  age;  the  law,  as  declared  by  the  court,  being 
to  prevent  the  reckless  marriage  of  minors  without  the  consent 


22  NATURE  AND   ELEMENTS. 

of  their  parents.  In  Montross  v.  State,  72  Ga.  261,  the  defendant 
was  indicted  and  convicted  for  distributing  indecent  pictorial 
newspapers.  He  undertook  on  the  trial  to  negative  the  existence 
of  any  criminal  intent,  by  showing  that  he  had  simply  taken 
the  picture  to  a  police  officer  for  the  purpose  of  testing  the  va- 
lidity of  the  law.  The  court  said : 

"Every  person  is  presumed  to  have  intended  the  natural  legal 
consequences  of  his  conduct,  whether  that  conduct  be  malum  in 
se,  as  we  think  this  was,  or  malum  prohibitum.  There  is  no  pre- 
tence that  this  defendant  was  unapprised  of  the  law  under  which 
he  is  prosecuted." 

It  is  not  a  sufficient  answer  to  this  class  of  cases  to  say,  as  was 
suggested  on  the  hearing,  that  in  the  case  of  the  law  respecting 
minors,  and  the  like,  a  party  dealing  with  them,  as  a  universal 
principle  of  law,  must  take  notice  of  the  disabilities  which  attach 
to  their  minority.  These  laws,  as  in  the  case  of  polygamy,  are 
based  upon  public  policy,  and  the  law  is  arbitrary,  and  holds  the 
party  responsible  for  the  consequences  of  his  act  when  the  means 
of  knowledge  are  in  his  reach.  It  is  a  part  of  the  common  law  of 
the  land  that  indecent  exposures,  the  uttering  of  obscene  words 
in  public,  and  the  like,  are  indictable  offences.  It  rests  upon  the 
universal  consensus  that  such  things  are  impure,  indecent,  and 
hurtful  to  the  public  morals  and  the  common  welfare;  and,  as 
every  man  is  supposed  to  know  this  fact,  when  he  knowingly 
violates  the  statute,  and  gives  publicity  to  such  matter,  he  stands 
without  an  excuse  in  law.  The  enforcement  of  the  federal  reve- 
nue laws  not  inaptly  illustrates  the  proposition  that  offences 
endangering  the  public  welfare  are  made  felonies,  infamous 
crimes  under  the  constitution,  where  the  criminal  intent  does  not 
qualify  the  act.  A  retail  dealer  in  spirituous  liquors  is  required 
to  take  out  a  license,  not  as  a  prohibitory  measure  looking  to  any 
matter  of  public  morals,  but  as  a  means  of  collecting  the  revenue 
essential  to  the  support  of  the  government.  The  sale  of  one  pint 
exposes  the  offender  to  indictment,  fine,  and  imprisonment  at 
hard  labor,  if  he  had  not  the  license,  although  he  may  sell  it  to 
raise  money  to  buy  necessary  medicine  where  human  life  is  in 
issue,  or  when  he  may  sell  it  to  a  sick  man  whose  restoration  de- 


UNITED  STATES   V.   HARMON.  23 

mands  its  ministration.  His  object  in  making  the  sale  in  no  wise- 
acquits  him  of  the  offence,  however  much  it  may  mitigate  his 
punishment  by  the  court.  The  validity  of  the  law  regulating 
the  sale  of  oleomargarine  is  upheld  by  the  courts,  and  although, 
there  are  people  who  believe  it  is  wholesome,  and  the  vendor 
should  believe  that  the  public  health  would  be  promoted  by  its 
use,  yet  if  he  knowingly  sells  it  without  the  requisite  license  and 
stamp,  notwithstanding  the  purchaser  knows  what  he  is  getting, 
he  commits  an  indictable  offence,  and  incurs  the  penalty.  It  is 
deemed  by  Congress  as  a  subject  of  regulation  for  the  public 
good;  and  as  a  means  to  that  end  Congress,  as  a  preventive,  has 
imposed  most  severe  penalties,  just  as  it  has  in  the  instance  of 
obscene  literature. 

Reduced  to  its  actual  essence,  the  ultimate  position  of  defend- 
ant is  this:  That  although  the  language  employed  in  the  given 
article  may  be  obscene,  as  heretofore  defined,  yet  as  it  was  a 
necessary  vehicle  to  convey  to  the  popular  mind  the  aggravation 
of  the  abuses  in  sexual  commerce  inveighed  against,  and  the  ob- 
ject of  the  publisher  being  to  correct  the  evil  and  thereby  al- 
leviate human  condition,  the  author  should  be  deemed  a  public 
benefactor,  rather  than  a  malefactor.  In  short,  the  proposition 
is  that  a  man  can  do  no  public  wrong  who  believes  that  what  he 
does  is  for  the  ultimate  public  good.  The  underlying  vice  of  all 
this  character  of  argument  is  that  it  leaves  out  of  view  the  ex- 
istence of  the  social  compact,  and  the  idea  of  government  by 
law.  If  the  end  sought  justifies  the  means,  and  there  were  no 
arbiter  but  the  individual  conscience  of  the  actor  to  determine 
the  fact  whether  the  means  are  justifiable,  homicide,  infanticide, 
pillage,  and  incontinence  might  run  riot;  and  it  is  not  extrava- 
gant to  predict  that  the  success  of  such  philosophy  would  remit 
us  to  that  barbaric  condition  where 

tfNo  common  weal  the  human  tribe  allied, 
Bound  by  no  law,  by  no  fixed  morals  tied, 
Each  snatched  the  booty  which  his  fortune  brought, 
And  wise  in  instinct  each  his  welfare  sought." 

Guiteau  stoutly  maintained  to  the  end  his  sanity,  and  that  he 
felt  he  had  a  patriotic  mission  to  fulfill  in  taking  off  President 


24  NATURE  AND   ELEMENTS. 

Garfield,  to  the  salvation  of  a  political  party.  The  Hindu  mother 
cast  her  babe  to  the  advouring  Ganges  to  appease  the  gods.  But 
civilized  society  says  both  are  murderers.  The  Mormon  contends 
that  his  religion  teaches  polygamy;  and  there  is  a  school  of  so- 
called  "modern  thinkers"  who  would  abolish  monogamy,  and 
erect  on  the  ruins  the  flagrant  doctrine  of  promiscuity,  under  the 
disguise  of  the  affinities.  All  these  claim  liberty  of  conscience 
and  thought  as  the  basis  of  their  dogmas,  and  the  probono publico 
as  the  strength  of  their  claim  to  indulgence.  The  law  against 
adultery  itself  would  lie  dormant  if  the  libertine  could  get  the 
courts  to  declare  and  the  jury  in  obedience  thereto  to  say  that  if 
he  invaded  the  sanctuary  of  conjugal  life  under  the  belief  that 
the  improvement  of  the  human  race  demanded  it  he  was  not 
amenable  to  the  statute.  Society  is  organized  on  the  theory,  born 
of  the  necessities  of  human  well-being,  that  each  member  yields 
up  something  of  his  natural  privileges,  predilections,  and  in- 
dulgences for  the  good  of  the  composite  community;  and  he  con- 
sents to  all  the  motto  implies,  solus  populi  suprema  est  lex;  and, 
as  no  government  can  exist  without  law,  the  law-making  power, 
within  the  limits  of  constitutional  authority,  must  be  recognized 
as  the  body  to  prescribe  what  is  right  and  prohibit  what  is  wrong. 
It  is  the  very  incarnation  of  the  spirit  of  anarchy  for  a  citizen  to 
proclaim  that  like  the  heathen  he  is  a  law  unto  himself. 

Our  attention  has  been  called  to  a  newspaper  report  of  an 
opinion  delivered  by  the  Supreme  Court  of  New  South  Wales 
in  the  case  of  Mrs.  Besant  for  the  publication  of  a  pamphlet  on 
"The  Law  of  Population,"  in  which  the  court  held  that  the  de- 
fendant was  within  the  pale  of  legitimate  discussion  of  a  subject 
of  vital  importance.  We  have  not  access  to  this  pamphlet  to  de- 
termine the  character  of  the  language  employed.  We  can  con- 
ceive, and  are1  free  to  say,  that  the  subject  of  the  increase  and  the 
prevention  of  population  might  be  publicly  discussed,  as  stated 
in  this  opinion,  "in  a  decent  way,"  without  coining  under  the  ban 
of  obscenity.  This  opinion  states  that  "it  is  right  to  advocate  in 
the  abstract  the  expediency  of  checking  the  advancing  tide  of 
population;  and  it  appears  to  me  impossible  to  contend  that  the 
thing  which  tells  how  this  may  be  done  is  obscene,  if  it  goes  no 
further  than  is  necessary  for  this  purpose."  The  scope  of  this 
language  is  to  be  restrained,  presumably,  by  the  facts  of  the 


UNITED   STATES  V.  HARMON.  25 

particular  case.  If,  however,  it  is  to  be  taken  as  asserting  that 
the  publisher  of  a  promiscuous  newspaper  may  discuss  the  pol- 
icy and  the  means  of  preventing  conception,  and  that  the  lan- 
guage deemed  essential  to  convey  the  meaning  of  the  writer  to 
the  popular  mind  may  be  employed  regardless  of  its  broad  vul- 
garity and  obscenity,  without  legal  responsibility,  it  cannot  have 
my  assent.  The  problem  of  population,  and  other  questions  of 
social  ethics  and  the  sexual  relations,  may  be  publicly  discussed 
on  such  a  high  plane  of  philosophy,  thought,  and  fitness  of  lan- 
guage as  to  make  it  legally  unexceptional.  They  may  be  dis- 
cussed so  as  to  be  plain,  yet  chaste,  so  as  to  be  instructive  and 
corrective  without  being  coarse,  vulgar,  or  seductive.  But  when 
such  publication  descends  to  the  low  plane  of  indecent  illustra- 
tions and  grossness  of  expression  as  adopted  by  Dr.  O'Neill,  it 
loses  all  claim  "to  respectability.  This  article  sets  forth  with  a 
bluntness  of  speech  and  a  baldness  of  immodesty  of  expression 
instances  of  bestiality  and  human  depravity  not  at  all  germane 
to  the  subject  of  the  sexual  relations,  which  is  the  professed  ob- 
ject of  the  publication  of  "Lucifer;"  and  when  the  defendant 
and  his  coadjutors  say  that  such  language  and  subject-matter  are 
only  impure  to  the  overprudish  it  but  illustrates  how  familiarity 
with  obscenity  blunts  the  sensibilities,  depraves  good  taste,  and 
perverts  the  judgment.  To  the  pure  all  things  are  pure,  is  too 
poetical  for  the  actualities  of  practical  life.  There  is  in  the  popu- 
lar conception  and  heart  such  a  thing  as  modesty.  It  was  born 
in  the  Garden  of  Eden.  After  Adam  and  Eve  ate  of  the  fruit 
of  the  tree  of  knowledge  they  passed  from  that  condition  of  per- 
fectibility which  some  people  nowadays  aspire  to,  and,  their 
eyes  being  opened,  they  discerned  that  there  was  both  good  and 
evil;  "and  they  knew  that  they  were  naked;  and  they  sewed  fig 
leaves  together,  and  made  themselves  aprons."  From  that  day 
to  this  civilized  man  has  carried  with  him  the  sense  of  shame, — 
the  feeling  that  there  were  some  things  on  which  the  eye — the 
mind — should  not  look;  and  where  men  and  women  become  so 
depraved  by  the  use,  or  so  insensate  from  perverted  education, 
that  they  will  not  veil  their  eyes,  nor  hold  their  tongues,  the  gov- 
ernment should  perform  the  office  for  them  in  protection  of  the 
social  compact  and  the  body  politic. 

The  defendant  has  not  exhibited  in  this  case  a  willing  and 


26  NATURE   AND   ELEMENTS. 

obedient  mind  to  law,  and  cannot  claim  that  he  has  acted  unwit- 
tingly. After  trial  and  conviction  for  a  similar  publication,  and 
while  that  cause  was  on  appeal,  he  made  this  publication,  and 
after  arrest,  and  pending  trial  herein  before  the  commissioner, 
he  again  and  again  deposited  in  the  post-office  the  same  publica- 
tion. We  recognize  his  right  to  have  the  validity  of  the  law 
tested;  but,  pending  the  litigation,  the  spirit  of  good  citizenship 
would  have  induced  forbearance  from  repeating  the  alleged  of- 
fence. Neither  is  this  publication  of  Dr.  O'Neill's  defensible 
or  justifiable  on  the  ground  that  the  evils  detailed  must  find 
their  correction  through  such  a  medium  of  discussion  as  the 
'Xucifer."  They  all  come  under  the  denunciation  of  common  or 
statute  law;  and  these  declaimers  would  do  more  to  suppress  and 
prevent  their  repetition  by  having  such  miscreants  arrested  and 
prosecuted  in  the  courts  than  by  firing  paper  words  at  the  acts. 
Such  zeal  can  never  reach  martyrdom,  for  it  is  without  that 
spirit  which  challenges  admiration  and  popular  intelligent  re- 
spect. The  responsibility  for  this  statute  rests  upon  Congress. 
The  duty  of  the  courts  is  imperative  to  enforce  it  while  it  stands. 
My  conclusion  from  the  facts  and  the  law  is  that  the  defendant 
is  guilty,  in  manner  and  form,  as  charged  in  the  first,  third,  and 
fourth  counts  of  the  indictment. 

Com.  v.  Has.,  122  Mass.  40;  State  u.  White,  64  N.  H.  48;  Reynolds  tr. 
U.  S.,  98  U.  S.  145;  Reg.  v.  Sharpe,  7  Cox.  C.  C.  214;  Reg.  v.  Hicklln, 
L.  R.  3  Q.  B.  360;  Guiteau's  Case,  10  Fed.  Rep.  161;  U.  S.  v.  Anthony, 
11  Blatch  C.  C.  200;  People  v.  Cornetti,  92  N.  Y.  85;  State  v.  King,  86 
N.  C.  603;  Perdue  v.  State,  2  Hump.  494;  Clark,  p.  40;  Wharton  1,  Sec. 
119-121;  Hawley  &  McGregor,  p.  25;  The  Penal  Code  of  Pa.;  Shields, 
vol.  I.,  391,  418,  421. 


THE  STATE  V.   GOIN.  27 


Capacity  as  Affecting  Intent. 

A  crime  can  be  committed  only  by  one  having  sufficient 
mental  capacity  to  entertain  a  criminal  intent. 

(1)  Infancy. 

Infants  under  the  age  of  seven  are  conclusively  presumed 
to  be  incapable  of  committing  crimes  ;  between  the  ages  of 
seven  and  fourteen  prima  facie  incapable  ;  above  the  age  of 
fourteen  prima  facie  capable. 

THE  STATE  v.  GOIN. 

Supreme  Court  of  Tennessee,  1848. 
9  Humph.  175. 

McKiNNEY,  J.  delivered  the  opinion  of  the  court. 

The  defendant  was  convicted  of  an  assault  and  battery 
by  the  verdict  of  a  jury;  but  the  court  refused  to  render 
judgment  upon  the  verdict,  and  discharged  the  defendant  upon 
the  ground  that  she  was  only  about  twelve  years  of  age,  being  of 
opinion  that  a  minor,  under  the  age  of  fourteen  was  not  subject 
to  criminal  punishment  for  misdemeanors,  although  possessed  of 
sufficient  capacity  to  distinguish  between  good  and  evil.  In  this, 
it  is  insisted  by  the  Attorney  General,  there  is  error. 

There  is  some  confusion  and  apparent  conflict  in  the  books  in 
respect  to  the  liability  of  an  infant  to  criminal  punishment  for 
misdemeanors  under  the  age  of  twenty-one.  And  so  far  as  our 
examination  has  extended,  no  very  definite  or  uniform  rule 
seems  to  have  been  established.  In  regard  to  felonies,  it  is  other- 
wise. All  the  authorities  concur,  that  under  the  age  of  seven 
years  an  infant  cannot  be  punished  for  any  felony  committed  by 
him:  for  the  law  presumes  that  in  such  case  a  felonious  discretion 
cannot  exist,  and  against  this  presumption  no  averment  shall  be 
admitted.  1  Hale  P.,  C.  27,  28,  4  Bl.  Com.  23.  But,  on  attain- 


28  NATURE   AND   ELEMENTS. 

ing  the  age  of  fourteen,  the  criminal  acts  of  infants  are  subject 
to  the  same  construction  and  punishment  as  are  those  of  persons 
of  full  age,  being  then  presumed  to  be  doli  capaces,  and  capable 
of  distinguishing  between  right  and  wrong.  In  the  interval  be- 
tween the  ages  of  seven  and  fourteen  years,  they  are  deemed, 
prima  facie,  doli  incapaces,  and  incapable  of  contracting  guilt. 
If,  however,  it  clearly  appear  that  they  were  doli  capaces,  and 
could  discriminate  between  good  and  evil,  they  may  be  convicted 
and  punished.  The  maxim  in  such  cases  is,  malitia  supplet 
cetatem;  but  the  evidence  of  malice  which  is  to  supply  age,  must 
be  clear  beyond  all  contradiction.  Such  are  the  well  established 
principles  in  regard  to  infants  charged  with  the  commission  of 
felonies.  In  treating  of  the  capacity  of  infants  to  commit  crimes, 
Blackstone,  4  Com.  22,  says:  "The  law  of  England  does,  in  some 
cases,  privilege  an  infant  under  the  age  of  twenty-one,  as  to  com- 
mon misdemeanors,  so  as  to  escape  fine,  imprisonment,  and  the 
like;  and  particularly  in  cases  of  omission,  as  not  repairing  a 
bridge,  or  a  highway,  and  other  similar  offences;  for  not  having 
the  command  of  his  fortune  till  twenty-one,  he  wants  the  capa- 
city to  do  those  things  which  the  law  requires.  But,  where  there 
is  any  notorious  breach  of  the  peace,  a  riot,  battery,  or  the  like, 
(which  infants,  when  full  grown,  are  at  least  as  liable  as  others 
to  commit),  for  these  an  infant  above  the  age  of  fourteen,  is 
equally  liable  to  suffer  as  a  person  of  the  full  age  of  twenty-one." 
This  authority,  however,  does  not  assert — nor  do  any  of  the  au- 
thorities to  which  we  have  had  access — that  an  infant  under  the 
age  of  fourteen,  if  possessed  of  sufficient  capacity  to  discern  good 
from  evil,  may  not  be  punished  in  such  cases;  and  we  apprehend 
the  author  did  not  intend  to  be  so  understood.  The  position  laid 
down,  as  far  as  it  goes,  is  unquestionably  correct,  that  infants 
above  the  age  of  fourteen  are  equally  as  liable  as  persons  of  full 
age  to  conviction  and  punishment  in  cases  of  misdemeanors  in- 
volving violence  and  breaches  of  the  peace;  and  so  in  cases  of 
felony.  But,  this  authority  does  not  establish  the  conclusion 
attempted  to  be  deduced  from  it,  that,  under  the  age  of  four- 
teen, an  infant,  regardless  of  his  capacity  to  commit  crime,  shall 
be  exempt  from  punishment.  It  would  seem  grossly  absurd  to 
hold  that  an  infant  under  the  age  of  fourteen,  if  possessed  of 
sufficient  capacity,  may  be  convicted  and  punished,  even  with 


THE   STATE  V.   COIN.  29 

death,  but  that  in  cases  of  breach  of  the  peace,  or  violent  injuries 
to  the  person  of  another,  he  shall  be  permitted  to  escape,  though 
possessed  of  like  capacity.  Such  distinction  is  inconsistent  with 
reason;  it  is  also  in  opposition  to  an  admitted  axiom  of  the  law, 
that  the  higher  the  grade  of  the  offence,  the  stronger  should  be 
the  proof,  not  merely  of  the  corpus  delicti,  but  also  of  the  capa- 
city of  the  offender;  and  it  is  no  less  opposed  to  one  of  the  chief 
ends  of  criminal  jurisprudence,  the  preservation  of  the  public 
peace  and  security  of  the  persons  of  the  citizens.  In  Dane's  Abr. 
vol.  6,  638,  it  is  laid  down,  in  accordance  with  what  we  under- 
stand to  be  the  law,  that,  "for  a  breach  of  the  peace,  a  riot,  bat- 
tery, etc.,  a  minor  above  fourteen  years  may  be  punished;  under 
seven  years  of  age  an  infant  cannot  be  guilty;  but  between  seven 
and  fourteen  years  of  age,  the  capacity  only  is  regarded;  hence, 
one  eight  years  of  age  may  be  guilty,  and  punished."  See  also 
Eoscoe's  Or.  Ev.,  872. 

The  proof  in  this  record  shows,  that  the  defendant  had  suffi- 
cient capacity  to  commit  crime;  and  that  the  battery  was 
prompted  by  malice  and  revenge,  and  committed  upon  an  infant 
incapable  of  self-defence;  and,  being  of  opinion  that  the  con- 
viction was  proper,  we  hold  that  the  Circuit  Court  erred  in  re- 
fusing to  pronounce  judgment  and  in  discharging  the  defend- 
ant. The  judgment  will,  therefore,  be  reversed,  and  judgment 
will  be  here  rendered  upon  the  verdict. 

Willet  v.  Com.,  13  Bush.  230;  State  v.  Tice,  90  Mo.  112;  Angelo  v.  Peo- 
ple, 96  111.  209;  People  v.  Townsend,  3  Hill  (N.  Y.)  479;  State  v.  Guild, 
10  N.-J.  L.  163;  State  v.  Barton,  71  Mo.  288;  State  v.  Adams,  76  Mo.  355; 
Com.  v.  Mead,  10  Allen  396  &  398;  State  v.  Learnard,  41  Vt.  585;  State 
v.  Nickleson,  14  So.  134;  Keith  v.  State,  26  S.  W.  412;  State  v.  Milhol- 
land,  56  N.  W.  403;  Godfrey  v.  State,  31  Ala.  323;  State  v.  Doherty,  2 
Overton  80;  State  v.  Bostwick,  4  Harr.  563;  Irby  v.  Georgia,  32  Ga. 
496;  Clark,  p.  49;  Bishop  1,  Sec.  367  et  seq;  Wharton,  67  et  seq;  Hawley 
&  McGregor,  p.  7. 

NOTE.— The  above  ages  are  changed  by  statute  in  some  of  the  States. 

Minn.  Stat.  1894,  Sec.  6300,  6301;  Clark,  p.  49;  New  York  Penal  Code, 
Sec.  18,  19. 

NOTE. — At  common  law  a  minor  under  the  age  of  fourteen  is  con- 
clusively presumed  incapable  of  committing  rape. 

Reg.  v.  Philips,  8  Car  &  P.  736;  State  v.  Handy,  4  Harr  566;  Reg.  v. 
Jordan,  9  C.  &.  P.  118;  Clark,  p.  51,  191;  Bishop  I.,  Sec.  373;  Wharton, 
Sec.  69;  Hawley  &  McGregor,  p.  170. 


30  N.\  H  Kl.    AND   ELEMENTS. 

NOTE.— In  some  States  this  presumption  is  disputable. 

Williams  v.  State,  14  Ohio  222;  People  r.  Randolph,  2  Park  C.  C.  174; 
Gordon  t;.  State,  21  S.  E.  54;  Com.  v.  Green,  2  Pick.  380;  State  v.  Pugh, 
7  Jones  (N.  C.)  01;  O'Meara  v.  State,  17  Ohio  St.  521;  State  v.  Jones,  39 
La.  Ann.  935;  Heilman  v.  Com.,  84  Ky.  457;  N.  Y.  Penal  Code,  Sec.  279; 
Clark,  p.  191;  Bishop  I.,  Sec.  373;  Bishop  II.,  Sec.  1117;  Hawley  &  Mc- 
Gregor, p.  170. 

(2)  Insanity. 

Insanity  in  law  is  a  weak  or  diseased  condition  of  mind 
rendering  it  incapable  of  entertaining  a  criminal  intent. 

Persons  insane  in  law  cannot  be  tried,  sentenced  or 
punished  for  any  criminal  act. 

(a)  Tests. 
(I1)  Eight  and  Wrong. 

The  "  right  and  wrong  "  test  is  applied  by  a  majority  of 
the  courts.  A  person  is  legally  insane  when  he  cannot 
distinguish  between  right  and  wrong  as  to  a  particular  act 
at  the  time  he  performs  it. 

FLANAGAN  v.  THE  PEOPLE. 

Court  of  Appeals  of  the  State  of  New  York,  1873. 
52  N.  Y.  467. 

THE  plaintiff  in  error  was  indicted  for  murder  in  the  first  de- 
gree in  killing  his  wife.  The  defence  interposed  was  insanity. 

ANDREWS,  J.  The  judge,  among  other  things,  charged  the 
jury  that,  "to  establish  a  defence  on  the  ground  of  insanity,  it 
must  be  clearly  proven  that,  at  the  time  of  committing  the  act 
(the  subject  of  the  indictment),  the  party  accused  was  laboring 
under  such  a  defect  of  reason  from  disease  of  the  mind  as  not 
to  know  the  nature  and  quality  of  the  act  he  was  doing;  and,  if 
he  did  know  it,  that  he  did  not  know  he  was  doing  wrong;"  and 
to  this  part  of  the  charge  the  prisoner,  by  his  counsel,  ex- 
cepted. 


FLANAGAN   V.  THE   PEOPLE.  31 

The  part  of  the  charge  excepted  to  was  in  the  language  em- 
ployed by  Tindal,  C.  J.,  in  McNaughton's  Case  (10  Clarke  & 
Fin.,  210),  in  the  response  of  the  English  judges  to  the  questions 
put  to  them  by  the  House  of  Lords  as  to  what  instructions  should 
be  given  to  the  jury,  on  a  trial  of  a  prisoner  charged  with  crime, 
when  the  insane  delusion  of  the  prisoner,  at  the  time  of  the  com- 
mission of  the  alleged  act,  was  interposed  as  a  defence. 

All  the  judges,  except  one,  concurred  in  the  opinion  of  Tindal, 
C.  J.,  and  the  case  is  of  the  highest  authority;  and  the  rule  de- 
clared in  it  has  been  adhered  to  by  the  English  courts. 

MAULE,  J.,  gave  a  separate  opinion,  in  which  he  declared  that, 
to  render  a  person  irresponsible  for  crime  on  account  of  unsound- 
ness  of  mind,  the  unsoundness  should,  according  to  the  law,  as 
it  has  long  been  understood  and  held,  be  such  as  to  render  him 
incapable  of  knowing  right  from  wrong. 

In  the  case  of  The  People  v.  Bodine  (4  Denio,  9)  the  lan- 
guage of  Tindal,  C.  J.,  in  the  McNai  ghton  Case,  was  quoted 
and  approved;  and  Beardsley,  J.,  said:  "Where  insanity  is  in- 
terposed as  a  defence  to  an  indictment  for  an  alleged  crime,  the 
inquiry  is  always  brought  down  to  the  single  question  of  a  capa- 
city to  distinguish  between  right  and  wrong  at  the  time  the  act 
was  done." 

The  rule  was  reaffirmed  in  the  case  of  Willis  v.  The  People 
(32  N.  Y.,  717),  and  it  must  be  regarded  as  the  settled  law 
of  this  State,  that  the  test  of  responsibility  for  criminal  acts, 
where  unsoundness  of  mind  is  interposed  as  a  defence,  is  the 
capacity  of  the  defendant  to  distinguish  between  right  and 
wrong  at  the  time  of  and  with  respect  to  the  act  which  is  the 
subject  of  the  inquiry. 

We  are  asked  in  this  case  to  introduce  a  new  element  into  the 
rule  of  criminal  responsibility  in  cases  of  alleged  insanity,  and  to 
hold  that  the  power  of  choosing  right  from  wrong  is  as  essential 
to  legal  responsibility  as  the  capacity  of  distinguishing  between 
them;  and  that  the  absence  of  the  former  is  consistent  with  the 
presence  of  the  latter. 

The  argument  proceeds  upon  the  theory  that  there  is  a  form 
of  insanity  in  which  the  faculties  are  so  disordered  and  deranged 
that  a  man,  though  he  perceives  the  moral  quality  of  his  acts,  is 


32  NATURE  AND   ELEMENTS. 

unable  to  control  them,  and  is  urged  by  some  mysterious  pressure 
to  the  commission  of  acts,  the  consequences  of  which  he  antici- 
pates but  cannot  avoid. 

Whatever  medical  or  scientific  authority  there  may  be  for  this 
view,  it  has  not  been  accepted  by  courts  of  law. 

The  vagueness  and  uncertainty  of  the  inquiry  which  would  be 
opened,  and  the  manifest  danger  of  introducing  the  limitation 
claimed  into  the  rule  of  responsibility,  in  cases  of  crime,  may 
well  cause  courts  to  pause  before  assenting  to  it. 

Indulgence  in  evil  passions  weakens  the  restraining  power  of 
the  will  and  conscience;  and  the  rule  suggested  would  be  the 
cover  for  the  commission  of  crime  and  its  justification.  The 
doctrine  that  a  criminal  act  may  be  excused  upon  the  notion  of 
an  irresistible  impulse  to  commit  it,  where  the  offender  has  the 
ability  to  discover  his  legal  and  moral  duty  in  respect  to  it,  has 
no  place  in  the  law.  Rolfe,  B.,  in  Rogers  v.  Allunt,  where,  on 
the  trial  of  an  indictment  for  poisoning,  the  defendant  was  al- 
leged to  have  acted  under  some  moral  influence  which  he  could 
not  resist,  said :  "Every  crime  was  committed  under  an  influence 
of  such  a  description;  and  the  object  of  the  law  was  to  compel 
people  to  control  these  influences." 

The  judge  intended,  by  the  proposition  excepted  to,  as  is  ap- 
parent from  the  other  parts  of  the  charge,  merely  to  instruct  the 
jury  as  to  the  character  and  extent  of  mental  unsoundness  which, 
if  proved,  would  shield  from  criminal  responsibility;  and  it  must 
have  been  so  understood  by  the  jury  and  by  counsel;  and  to  the 
rule  thus  propounded  by  the  judge  the  exception  was  pointed. 
What  was  said  as  to  the  measure  of  proof  of  insanity  was  inci- 
dental and  collateral  to  the  main  proposition;  and  if  an  inadvert- 
ent error  in  phraseology  crept  in,  it  did  not  mislead,  and  was  not 
excepted  to. 

In  People  v.  McCann  (16  N.  Y.,  58)  it  was  held  that  it  was 
error  to  charge  the  jury  in  a  criminal  case  that  the  insanity  of 
the  prisoner  must  be  proved  beyond  a  reasonable  doubt  to  en- 
title him  to  an  acquittal.  This  was  the  extent  of  the  decision. 
The  question  was  not  in  the  case,  whether  the  prisoner  would  be 
entitled  to  the  benefit  of  a  doubt  upon  the  evidence  introduced 
by  him  to  establish  the  defence.  What  is  said  by  the  learned 
judges  upon  that  subject  is  entitled  to  such  weight  as  their  char- 


FLANAGAN   V.   THE   PEOPLE.  33 

acter  and  learning  and  their  arguments  entitle  it  to.  (See  Peo- 
ple v.  Schryver,  42  K  Y.,  1.) 

It  is  not  necessary  for  us  to  consider  the  question  in  this  case; 
but  we  prefer  to  leave  it  precisely  where  the  cases  cited  leave  it, 
an  open  question,  so  far  as  judicial  authority  in  this  State  is  con- 
cerned. 

The  exception  considered  is  the  only  one  presented  or  argued 
by  counsel,  and  we  are  of  the  opinion  that  the  judgment  should 
be  affirmed. 

All  concur;  Rapallo,  J.,  in  result. 

Judgment  affirmed. 

Hornish  v.  State,  142  111.  620;  McNaughtcn's  Case,  10  Clark  &  F.  200; 
Dunn  v.  People,  109  111.  635;  Blackburn  v.  State,  23  Ohio  State  146; 
Spann  v.  State,  47  Ga.  553;  State  v.  Shippey,  10  Minn.  223;  State  v.  Gut, 
13  Minn.  315;  State  v.  Wells,  54  Kan.  161;  People  v.  Pine,  2  Barb.  566; 
People  v.  O'Connell,  62  How.  Pr.  436;  Reg.  v.  Barton,  3  Cox.  C.  C.  275; 
Reg.  v.  Stokes,  3  C.  &  K.  185;  Clark,  p.  52;  Bishop  I.,  Sec.  386;  Wharton, 
Sec.  34;  Hawley  &  McGregor,  p.  9. 

Arnold's  Case,  16  State  Trials  695;  Regina  v.  Higginson,  1  C.  &  K.  129; 
People  v.  Hobson,  17  Cal.  424;  Willis  v.  People,  5  Park  621;  State  v. 
Hay  wood,  Phillips  Law  376;  State  v.  Thompson,  Wright  (Ohio)  617; 
State  v.  Redemeier,  8  Mo.  App.  1;  Erwin  v.  State,  10  Tex.  App.  700; 
Wilcox  v.  State,  28  S.  W.  312;  People  v.  Leary,  39  Pac.  24,  105  Cal.  486; 
State  v.  Brandon,  8  Jones  (N.  C.)  463;  Stevens  v.  State,  31  Ind.  485; 
Bradley  v.  State,  31  Ind.  492;  Fouts  v.  State,  4  Greene  (la.)  500;  Roberts 
v.  State,  3  Ga.  310;  Minn.  State,  1894,  Sec.  6303;  N.  Y.  Penal  Code,  Sec. 
20,  21;  The  Penal  Code  of  Pa.;  Shields,  vol.  II.,  922-925.  Contra—  Clark 
v.  State,  12  Ohio  483;  Reg.  v.  Burton,  3  F.  &  F.  772. 


34  NATURE  AND   ELEMENTS. 


(21)  Irresistible  Impulse. 

Some  courts  recognize  the  "irresistible  impulse  test." 
A  person  is  legally  insane,  though  he  can  distinguish  right 
from  wrong,  when,  by  reason  of  weakness  or  disease  of 
mind,  he  is  under  the  control  of  an  impulse  so  irresistible 
as  to  destroy  his  free  agency.  But  such  an  impulse  is 
deemed  irresistible  only  when  the  person  is  otherwise 
insane. 

STATE  v.  FELTEB. 

Supreme  Court  of  Iowa,  1868. 
25  la.  67. 

THE  defendant  was  indicted  for  the  murder  of  his  wife, 
pleaded  not  guilty,  was  tried,  found  guilty  of  murder  in  the  sec- 
ond degree  and  sentenced  to  imprisonment  in  the  penitentiary  of 
the  State  for  life.  From  this  judgment  he  appeals  to  this  court. 

The  court  charged  the  jury  that  "if  the  defendant,  at  the 
time  of  the  commission  of  the  act  (if  he  did  commit  it),  was  lab- 
oring under  such  a  degree  of  insanity  as  irresistibly  and  uncon- 
trollably forced  him  to  commit  the  act,  and  if  he  did  not  at  the 
time  of  the  act,  have  reason  sufficient  to  discriminate  between 
right  and  wrong  in  reference  to  the  act  about  to  be  committed  by 
him,  it  is  your  duty  to  acquit  wholly;  in  other  words,  if  you  be- 
lieve from  the  evidence  that  the  defendant's  mind,  at  the  time  of 
committing  the  act  (if  he  did  commit  it),  was  so  insane  that  he 
did  not  know  the  nature  of  the  crime,  and  did  not  know  that  he 
was  doing  wrong  in  doing  the  act,  it  is  your  duty  to  acquit  him 
altogether." 

The  defendant's  counsel  complain  of  this  instruction,  and  in 
their  written  argument  make  to  it  this  objection:  "The  court  did 
not  state  the  law;  only  a  part  of  it.  It  told  the  jury  if  the  de- 
fendant had  sufficient  mind  to  discriminate  between  right  and 
wrong  he  was  responsible.  This  is  not  sufficient.  He  must  have 
mind  enough  to  know  that  he  will  be  held  responsible  for  his 
act." 


STATE  V.    FELTER.  35 

The  specified  objection  to  this  instruction  does  not  call  upon 
us  to  enter  at  length  on  an  examination  of  the  subject  of  insanity 
as  a  defence  to  alleged  criminal  acts.  The  instructions  as  given 
are  substantially  as  the  defendant's  counsel  in  their  argument 
claim  they  should  have  been,  and  are  not,  as  we  find  upon  com- 
parison, essentially  different  on  this  point  from  those  asked  to 
be  given  on  the  part  of  the  defendant. 

With  reference  to  the  right  and  wrong  test  referred  to  in  the 
instructions  given,  it  will  be  seen  that  the  court  does  not  adopt 
this  criterion  as  a  general  one,  that  is  the  court  does  not  say  if 
the  defendant  has  capacity  to  distinguish  between  right  and 
wrong  generally,  he  is  criminally  responsible. 

But  it  held  that  if  at  the  time  and  with  respect  to  the  act  about 
to  be  committed,  the  defendant  had  not  reason  enough  to  dis- 
criminate between  right  and  wrong  with  reference  to  that  act, 
had  not  reason  enough  to  know  the  nature  of  the  crime,  and  did 
not  know  that  he  was  doing  wrong  in  committing  it,  he  is  not 
criminally  punishable.  The  court  in  substance  held  that  if  the 
defendant's  reason  was  so  far  gone  or  overwhelmed  that  his  per- 
ception of  right  or  wrong  with  respect  to  the  contemplated  act 
was  destroyed,  if  he  did  not  rationally  comprehend  the  character 
of  the  act  he  was  about  to  commit,  he  should  be  acquitted. 

The  instruction  as  given  finds  a  full  support  in  the  judgments 
of  courts  the  most  respectable.  Freeman  v.  The  People,  4  Denior 
27;  and  approved  and  followed  in  the  recent  case  of  Willis  v~ 
The  People,  32  K  Y.,  715;  The  State  v.  Brandon,  8  Jones  (N. 
C.  Law),  463;  Mosler  v.  Commonwealth,  4  Barr.  266;  MclSTaugh- 
ton's  Case,  10  01.  &  F.  210;  Oxford's  Case,  9  C.  &  P.  525. 

On  the  other  hand,  the  right  and  wrong  test,  even  when 
guarded  as  carefully  as  in  the  court's  instruction,  has  been  very 
vehemently  opposed  as  incorrect  and  delusive  (Ray,  Sees.  16, 
17,  18,  19,  et  seq.-,  Wharton  &  Stille  [2d  ed.]  Sec.  59;  and  see 
Smith  v.  Commonwealth,  6  Duvall  [Ky.]  224),  especially  as  a 
criterion  of  responsibility  in  cases  of  moral  insanity. 

As  applied  to  the  facts  of  this  case,  a  preferable  mode  of  in- 
structing the  jury  will  be  briefly  indicated  below. 

In  my  opinion,  the  right  and  wrong  test  is  not  to  be  applied 
too  strictly,  and  belongs  more  properly  to  intellectual  than  to 
moral  insanity.  Intelligent  medical  observers  who  have  made  in- 


36  NATURE   AND   ELEMENTS. 

sanity  a  special  study,  insist  that  it  not  unfrequently  happens 
that  persons  undoubtedly  insane,  and  who  are  confined  on  that 
account  in  asylums,  are  able  to  distinguish  right  from  wrong,  and 
to  know  the  moral  qualities  of  acts. 

Perhaps  the  profession  of  law  has  not  fully  kept  pace  with 
that  of  medicine  on  the  subject  of  insanity.  And  yet  medical 
theorists  have  propounded  doctrines  respecting  insanity  as  an  ex- 
cuse for  criminal  acts,  which  a  due  regard  for  the  safety  of  com- 
munity and  an  enlightened  public  policy  must  prevent  jurists 
from  adopting  as  part  of  the  law  of  the  land. 

If,  as  the  court  charged,  the  defendant  committed  the  act  from 
an  irresistible  and  uncontrollable  insane  impulse,  not  knowing  it 
was  wrong,  it  is  clear  that  he  is  not  criminally  responsible. 

But  suppose  he  knew  it  was  wrong,  but  yet  was  driven  to  it 
by  an  uncontrollable  and  irresistible  impulse,  arising,  not  from 
natural  passion,  but  from  an  insane  condition  of  the  mind,  would 
he  then  be  criminally  responsible? 

Most  of  the  cases  before  cited  have  recognized  the  doctrine, 
that  there  is  a  responsibility  for  the  criminal  act  if  the  accused 
knew  at  the  time  it  was  wrong;  or,  as  it  would  be  better  ex- 
pressed, if  he  rationally  comprehended  the  character  and  conse- 
quences of  the  act. 

But,  if,  from  the  observation  and  concurrent  testimony  of 
medical  men  who  make  the  study  of  insanity  a  specialty,  it  shall 
be  definitely  established  to  be  true,  that  there  is  an  unsound  con- 
dition of  the  mind, — that  is,  a  diseased  condition  of  the  mind,  in 
which,  though  a  person  abstractly  knows  that  a  given  act  is 
wrong,  he  is  yet,  by  an  insane  impulse,  that  is,  an  impulse  pro- 
ceeding from  a  diseased  intellect,  irresistibly  driven  to  commit 
it, — the  law  must  modify  its  ancient  doctrines  and  recognize  the 
truth,  and  give  to  this  condition,  when  it  is  satisfactorily  shown 
to  exist,  its  exculpatory  effect. 

It  is  not  too  much  to  say,  that  both  medicine  and  law  now 
recognize  the  existence  of  such  a  mental  disease  as  homicidal  in- 
sanity; the  remaining  question  in  jurisprudence  being  what  must 
be  shown  to  make  it  available  as  a  defence  to  a  charge  of  murder. 
See  Wharton  &  Stille's  Med.  Juris.  Sees.  61,  178. 

In  a  recent  case  in  Kentucky,  it  is  said  that  moral  insanity  is 
recognized  by  medico-jurists,  and  that  "the  true  test  of  responsi- 


STATE    V.   FELTER.  37 

bility  is,  whether  the  accused  had  sufficient  reason  to  know  right 
from  wrong,  and  whether  or  not  he  had  sufficient  power  of  con- 
trol to  govern  his  actions."  Smith  v.  Commonwealth,  1  Duval 
(Ky.)  224;  see  also  Scott  v.  Commonwealth,  4  Mete.  (Ky.)  227; 
compare  State  v.  Brandon,  supra. 

If  this  want  of  power  of  control  arose  from  the  insane  condi- 
tion of  the  mind  of  the  accused,  he  should  not  be  held  respons- 
ible. But  if  want  of  power  to  control  his  actions  arose  from 
violent  and  ungovernable  passions,  in  a  mind  not  diseased  or  un- 
sound, he  would  and  ought  to  be  criminally  punishable  for  his 
acts. 

Of  all  medico-legal  questions,  those  connected  with  insanity 
are  the  most  difficult  and  perplexing. 

Without  further  discussion,  we  conclude  by  stating  what,, 
under  the  facts  of  this  case,  would  be  safe  and  proper  directions- 
to  be  given  to  the  jury  respecting  the  point  under  consideration. 
The  jury,  in  substance,  should  be  told  that  if  the  defendant's  act 
in  taking  the  life  of  his  wife  (if  he  did  take  it),  was  caused  by 
mental  disease  or  unsoundness,  which  dethroned  his  reason  and 
judgment  with  respect  to  that  act,  which  destroyed  his  power 
rationally  to  comprehend  the  nature  and  consequences  of  that 
act,  and  which,  overpowering  his  will,  irresistibly  forced  him  to 
its  commission,  then  he  is  not  amenable  to  legal  punishment. 
But  if  the  jury  believe  from  all  the  evidence  and  circumstances, 
that  the  defendant  was  in  the  possession  of  a  rational  intellect  or 
sound  mind,  and  allowed  his  passions  to  escape  control,  thenr 
though  passion  may  for  the  time  being  have  driven  reason  from 
her  seat  and  usurped  it,  and  hav^  urged  the  defendant  with  a 
force  at  the  moment  irresistible  to  desperate  acts,  he  cannot 
claim  for  such  acts  the  protection  of  insanity. 

Whether  passion  or  insanity  was  the  ruling  force  and  con- 
trolling agency  which  led  to  the  homicide, — in  other  words, 
whether  the  defendant's  act  was  the  insane  act  of  an  unsound 
mind,  or  the  outburst  of  violent,  reckless  and  uncontrolled  pas- 
sion in  a  mind  not  diseased, — is  the  practical  question  which  the 
jury  should  be  told  to  determine  according  to  their  best  judg- 
ment upon  the  evidence  before  them.  If  they  believe  that  the 
homicide  was  the  direct  result  or  offspring  of  insanity,  they 
should  acquit;  if  of  passion,  unless  it  be  an  insane  passion,  they 


38  NATURE   AND   ELEMENTS. 

should  convict.  This  is  a  much  more  practical  inquiry  than  to 
direct  their  attention  solely  to  the  defendant's  capacity  at  the 
time  to  distinguish  right  from  wrong — an  inquiry  which  must 
often  be  speculative  and  difficult  of  determination  from  the  data 
possible  to  be  laid  before  the  jury,  and  which  as  a  test  or  criterion 
of  responsibility  rather  belongs,  when  applicable,  to  what  is 
known  as  intellectual,  as  distinguished  from  moral  insanity. 

As  the  case  will  have  to  be  retried,  we  have  briefly  indicated 
our  general  views  as  to  the  instructions  proper  to  be  given  to  the 
jury  on  the  subject  of  criminal  capacity  and  responsibility. 
Where  homicidal  insanity  is  relied  on,  the  court  may  very  prop- 
erly say  to  the  jury  that  they  should  indulge  in  no  prejudice 
against  the  defence,  but  give  it  thoughtful,  thorough,  dispassion- 
ate consideration;  yet  that  the  interest  of  society  requires  that  it 
ought  not  to  be  regarded  as  sufficient  to  exculpate  unless  the  jury 
believe  from  the  evidence  that  the  propensity  to  commit  the  act 
existed  in  such  violence  as  to  subjugate  the  intellect,  control  the 
will  and  render  it  impossible  for  the  accused  to  do  otherwise  than 
to  yield  to  the  insane  impulse.  In  other  words,  it  should  appear 
not  only  that  the  mind  of  the  accused  was  insane,  but  that  the 
act  for  which  he  is  indicted  was  the  direct  offspring  of  such  in- 
sanity; this  being  shown,  responsibility  is  annulled,  but  not 
otherwise.  Because  of  the  error  of  the  court  in  excluding  ma- 
terial portions  of  the  affidavit  for  a  continuance,  the  judgment  is 
reversed,  and  the  cause  remanded  for  a  new  trial. 

Reversed. 

State  v.  Reidell,  9  Houst.  470;  Parsons  v.  State.  81  Ala.  577;  Smith  v. 
Com.,  1  Duvall  (Ky.)  224;  Harris  v.  State,  18  Tex.  App.  287;.Looney 
v.  State,  10  Tex.  App.  520;  State  v.  Jones,  50  N.  H.  369;  Wharton's 
note,  Guiteau  Case,  10  Fed.  Rep.  189;  State  v.  Windsor,  5  Harr.  (Del.) 
512;  Com.  v.  Rogers,  7  Met.  (Mass.)  500;  Dejarnette  v.  Com.  75  Va.  867; 
Reg.  v.  Oxford,  9  Car.  &  P.  525,  546;  State  v.  Coleman,  27  La.  Ann.  691; 
Stevens  v.  State,  31  Ind.  485;  Blackburn  v.  State,  23  Ohio  St.  146;  Free- 
man v.  People,  4  Denio  9;  Willis  v.  People,  32  N.  Y.  715;  Meyer  v.  Peo- 
ple, 156  111.  126;  Clark,  p.  55;  Bishop  1,  Sec.  387,  388;  Wharton,  Sec.  43; 
Hawley  &  McGregor,  p.  10. 

Hopps  v.  People,  31  111.  385;  Wright  v.  People,  4  Neb.  407;  Com.  t?. 
Mosler,  4  Pa.  St.  264;  Ortwein  r.  Com..  76  Pa.  414;  State  v.  Johnson,  40 
Conn.  136;  Cunningham  r.  State,  56  Miss.  268;  Lynch  v.  Com.  77  Pa.  §05; 
People  v.  Sprague,  2  Park  Cr.  Cas.  43.  Contra.— State  v.  Thomas,  15  So. 
237. 


COMMONWEALTH  V.   GERADE.  39 

(31)  Emotional  insanity,  a  phase  of  irresistible  impulse,  driv- 
ing one,  by  reason  of  sudden  passion,  to  the  commission  of  crime, 
is  not  recognized  by  the  courts  as  a  ground  of  irresponsibility. 

State  •».  Geddis,  42  la.  264;  Willis  v.  People,  5  Parker  621;  Cole's  Trial, 
7  Abb.  Pr.  N.  S.  321;  Reg.  v.  Haynes,  1  F.  &  F.  666;  Bus  well  on  Insan- 
ity, Sec.  442;  7  Alb.  Law  Jour.  273;  Clark,  p.  57;  Bishop  I.,  Sec.  387; 
Wharton,  Sec.  43. 

(41)  Moral  insanity,  a  perverted  condition  of  the  moral  sense, 
whereby  one  lives  under  a  mania  to  commit  certain  crime,  has 
found  recognition  in  some  few  tribunals.  This  is  a  dangerous 
doctrine  and  not  generally  accepted. 

State  v.  Reidell,  9  Houst.  470;  Com.  v.  Mosler,  4  Pa.  St.  264;  Coyle  v. 
Com.,  100  Pa.  573;  Sanchez  v.  People,  4  Park  535;  Taylor  v.  Com.,  109 
Pa.  262;  Harris  v.  State,  18  Tex.  App.  287;  Looney  v.  State,  10  Tex.  App. 
520;  N.  Y.  Penal  Code,  Sec.  23;  Clark,  p.  57;  Bishop  I.,  387;  Wharton, 
Sec.  46. 

(b)  Proof  of  Insanity. 

Burden  of  Proof. 

The  law  presumes  all  men  sane.  The  accused  must  in 
most  jurisdictions  prove  insanity  by  a  fair  preponderance  of 
evidence.  To  raise  a  reasonable  doubt  on  the  question  of 
sanity  is  not  sufficient. 

COMMONWEALTH  v.  GEKADE. 

Supreme  Court  of  Pennsylvania,  1891. 
145  Pa.  St.  289;  22  Atl.  464. 

DEFENDANT  was  indicted,  charged  with  the  murder  of  Annie 
Hofer. 

At  the  close  of  the  case  on  the  testimony,  the  court,  Magee, 
J.,  charged  the  jury  in  part  as  follows: 

I  will  now  take  up  the  points  presented  by  counsel  for  defend- 
ant, and  answer  them.  You  will  find  that  the  court,  in  the  prep- 
aration of  its  charge,  has  anticipated,  to  some  degree  at  least,  the 


40  NATURE  AND   ELEMENTS. 

points  presented  as  the  subject  of  its  consideration.   The  defend- 
ant, by  his  counsel,  asks  the  court  to  charge  the  jury  as  follows: 

1.  That  the  burden  of  proof  never  shifts  from  the  common- 
wealth to  the  defendant;  and  the  commonwealth  must  show,  be- 
yond a  reasonable  doubt,  that  the  defendant  was  of  sound  mind, 
memory  and  discretion  at  the  time  of  the  killing. 

Answer:  This  point  is  refused.  As  I  understand  the  point,  it 
is  intended  to  say  that  the  defence  of  insanity  shall  be  estab- 
lished beyond  a  reasonable  doubt;  that  unless  it  is  established  be- 
yond a  reasonable  doubt,  it  would  be  your  duty  to  acquit.  I  do 
not  understand  the  law  to  go  to  that  extent,  and  the  matter  will 
be  referred  to  in  my  general  charge,  wherein  the  law,  as  I  under- 
stand it,  is  correctly  stated  on  this  subject. 

2.  That  if,  at  any  stage  of  the  trial,  by  the  evidence  a  reason- 
able doubt  of  this  condition  of  the  defendant  arises,  it  is  the  duty 
of  the  jury  to  acquit. 

Answer:  This  point  is  refused.  Substantially  it  is  the  same 
point;  that  is,  if  insanity  is  the  ground  of  defence  you  must  be 
satisfied  beyond  a  reasonable  doubt  of  its  existence;  that  is  not, 
as  I  said  in  reference  to  the  first  point,  the  law  as  I  under- 
stand it. 

3.  If  the  jury  be  satisfied  by  the  evidence  that  at  the  time  of 
the  killing  the  defendant  was  insane,  that  he  was  under  the  con- 
trol of  a  resistless,  homicidal  impulse  that  led  to  the  commission 
of  the  act,  then  their  verdict  should  be,  "By  reason  of  insanity, 
not  guilty." 

Answer:  As  counsel  for  defendant  have  already  informed  me 
that  this  point  is  intended  to  involve  the  same  question  as  the 
two  preceding  points,  it  is  refused  for  the  reasons  given  above. 

4.  That  if,  on  any  material  matter  involved  in  the  issue,  the 
jury  entertains  a  doubt,  they  should  acquit. 

Answer:  This  point  is  affirmed,  and  we  refer  you  to  the  sub- 
ject in  our  general  charge  of  what  a  reasonable  doubt  is,'  and  to 
what  it  is  applicable. 

5.  That  one  of  the  essential  characteristics   of  murder  being 
that  defendant,  at  the  time  of  killing,  was  of  sound  memory  and 
discretion,  if  the  jury  has  any  reasonable  doubt  of  this  fact  they 
ought  to  acquit. 

Answer:   This  point  is  refused,  as  it  embodies  the  same  prin- 


COMMONWEALTH   V.   GERADE.  41 

ciple  that  is  suggested  in  the  first  point,  that  is,  that  insanity  has 
to  be  established  beyond  a  reasonable  doubt,  whereas  the  law,  as 
I  understand  it,  is,  that  that  being  a  defence,  you  are  only  re- 
quired to  determine  that  question  of  insanity  by  a  preponder- 
ance of  testimony. 

6.  That  under  the  plea  of  not  guilty,  the  defendant  has  the 
right  to  show,  by  way  of  defence,  the  insanity  of  the  defendant 
at  the  time  of  the  killing,  and  that  the  jury  must  pass  upon  the 
question  of  defendant's  sanity,  or  insanity,  and  if  they  find  him 
insane  at  the  time  of  the  killing,  acquit  by  reason  of  insanity. 

Answer:   This  point  is  affirmed. 

I  have  now  answered  the  points  presented  by  the  counsel  for 
the  defendant,  and  now  proceed  with  my  general  charge. 

The  indictment  which  has  been  read  in  your  hearing,  and 
upon  which  the  issue  is  joined,  charges  that  Annie  Hofer  was 
murdered  by  the  defendant,  and  contains  another  count  for  man- 
slaughter. Under  the  indictment  upon  which  this  issue  is  joined, 
the  prisoner  at  the  bar  may  be  acquitted  of  all  crime;  he  may  be 
convicted  of  voluntary  manslaughter;  he  may  be  convicted  of 
murder  of  the  second  degree,  or  he  may  be  convicted  of  mur- 
der of  the  first  degree.  So  that  it  becomes  necessary  for  the 
court  to  instruct  you  fully  as  to  the  law  respecting  the  degrees  of 
murder,  as  to  the  law  of  voluntary  manslaughter,  and  as  to  the 
law  of  insanity,  and  this  we  will  proceed  to  do.  *  * 

The  plea  of  insanity  is  a  defence  set  up  in  this  case.  Wher- 
ever idiocy,  or  dementia,  or  general  mania  is  shown  to  exist,  the 
prisoner  must  be  acquitted;  and  it  is  enough  if  it  be  shown  to 
have  existed  in  reference  to  the  particular  act.  At  one  time  it 
was  said  that  it  had  to  be  general  insanity,  applied  to  everything, 
insane  on  everything,  but  it  was  afterwards  modified,  in  that  it 
is  sufficient  to  be  insane  on  the  particular  act  that  is  charged  as 
criminal.  It  is  my  duty  to  say  to  you,  as  the  law  governing  the 
question  of  the  responsibility  of  men  for  their  acts,  that,  in  all 
cases,  every  man  is  presumed  to  be  sane  and  to  possess  a  sufficient 
degree  of  reason  to  be  responsible  for  his  crimes,  until  the  con- 
trary is  proved  to  the  satisfaction  of  the  jury;  and,  to  establish  a 
defence  on  the  ground  of  insanity,  it  must  be  clearly  proved  that 
at  the  time  of  committing  the  act,  the  party  accused  was  labor- 
ing under  such  a  defect  of  reason  from  disease  of  the  mind,  as 
not  to  know  the  nature  of  the  act  he  was  doing,  or  if  he  did  know 


42  NATURE   AND   ELEMENTS. 

it,  that  he  did  not  know  he  was  doing  what  was  wrong.  That 
looks  like  a  fair  definition  of  what  insanity  is.  That  is  what  is 
required  to  relieve  him  of  responsibility  for  his  acts.  *  *  * 

— October  1,  1890,  the  jury  returned  a  verdict  finding  the  de- 
fendant guilty  of  murder  of  the  first  degree.  On  November  8th, 
a  rule  for  a  new  trial  being  overruled,  judgment  was  passed, 
when  the  defendant  took  this  appeal,  assigning  for  error,  the  re- 
fusal of  the  foregoing  offers  of  the  defendant. 

OPINION,  ME.  JUSTICE  STEBRETT: 

As  stated  in  appellant's  history  of  the  case,  "the  defence  upon 
which  his  counsel  chiefly  relied  was  insanity."  In  view  of  that 
fact,  several  points  for  charge,  bearing  more  or  less  directly  on 
the  subject,  were  submitted.  One  of  these  is  "that  under  the  plea 
of  not  guilty,  the  defendant  has  a  right  to  show,  by  way  of  de- 
fence, the  insanity  of  the  defendant  at  the  time  of  the  killing, 
and  that  the  jury  must  pass  upon  the  question  of  the  defendant's 
sanity  or  insanity,  and  if  they  find  him  insane  at  the  time  of  the 
killing,  acquit  him  by  reason  of  insanity."  This  point  was  rightly 
affirmed  without  any  qualification,  and,  of  course,  it  is  not  as- 
signed for  error.  Other  points  recited  in  the  thirteenth,  four- 
teenth, fifteenth  and  seventeenth  specifications,  respectively, 
were  answered  in  the  negative,  and  therein  it  is  alleged  there 
was  error.  In  the  first  of  these,  the  court  was  requested  to 
charge:  "That  the  burden  of  proof  never  shifts  from  the  com- 
monwealth to  the  defendant,  and  the  commonwealth  must  show, 
beyond  a  reasonable  doubt,  that  defendant  was  of  sound  mind, 
memory,  and  discretion  at  the  time  of  the  killing."  The  learned 
judge's  answer  was:  "This  point  is  refused.  As  I  understand  the 
point,  it  is  intended  to  say  that  the  defence  of  insanity  shall  be 
established  beyond  a  reasonable  doubt;  that,  unless  it  is  estab- 
lished beyond  a  reasonable  doubt,  it  would  be  your  duty  to  ac- 
quit. I  do  not  understand  the  law  to  go  to  that  extent,  and  the 
matter  will  be  referred  to  in  my  general  charge,  wherein  the  law, 
as  I  understand  it,  is  correctly  stated  on  this  subject."  If  this 
answer  was  intended  to  be  responsive  to  the  point,  its  meaning 
is  not  very  clear.  The  court  was  not  requested  to  charge  "that 
the  defence  of  insanity  shall  be  established  beyond  a  reasonable 
doubt."  On  the  contrary,  the  last  clause  of  the  point  is,  in  sub- 


COMMONWEALTH   V.   GERADE.  43 

stance,  that  the  burden  of  proving,  affirmatively  and  beyond  a 
reasonable  doubt,  the  sanity  of  the  defendant  at  the  time  of  the 
killing,  was  on  the  commonwealth.  But,  whatever  impression 
this  and  other  answers  to  the  defendant's  points  may  have  made 
on  the  minds  of  the  jury,  it  may  be  safely  assumed  that,  in  con- 
sidering the  evidence  bearing  on  the  defence  of  insanity,  they 
were  governed  by  what  the  learned  judge  afterwards  said  in  that 
portion  of  his  general  charge  to  which  they  were  specially  re- 
ferred for  a  correct  statement  of  the  law  on  the  subject.  After 
speaking  particularly  of  insanity  as  a  defence,  etc.,  he  there  said, 
inter  alia :  "It  is  my  duty  to  say  to  you,  as  the  law  governing 
the  responsibility  of  men  for  their  acts,  that,  in  all  cases,  every 
man  is  presumed  to  be  sane  and  to  possess  a  sufficient  degree  of 
reason  to  be  responsible  for  his  crimes,  until  the  contrary  is 
proved  to  the  satisfaction  of  the  jury;  and,  to  establish  a  defence 
on  the  ground  of  insanity,  it  must  be  clearly  proved  that,  at  the 
time  of  committing  the  act,  the  party  accused  was  laboring  under 
such  a  defect  of  reason  from  disease  of  the  mind  as  not  to  know 
the  nature  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that  he 
did  not  know  he  was  doing  what  was  wrong.  This  looks  like  a 
fair  definition  of  what  insanity  is.  That  is  what  is  required  to  re- 
lieve him  of  responsibility  for  his  acts." 

Without  questioning  the  general  correctness  of  what  was  said, 
in  that  connection,  as  to  the  kind  of  insanity  that  constitutes  a 
defence  to  an  act,  which  would  otherwise  be  punishable  as  crim- 
inal, we  think  the  degree  of  proof  necessary  to  sustain  such  a  de- 
fence was  too  strongly  stated  in  saying  "it  must  be  clearly 
proved."  This  was  imposing  on  the  defendant  a  greater  burden 
than  the  law  requires. 

In  harmony  with  the  humane  principle  of  the  criminal  law, 
that  every  person  accused  of  crime  shall  be  presumed  innocent 
until  his  guilt  is  clearly  established,  it  is  incumbent  on  the  com- 
monwealth to  prove,  not  only  to  the  satisfaction  of  the  jury  but 
beyond  a  reasonable  doubt,  the  presence  of  every  ingredient  nec- 
essary to  constitute  the  crime  charged  in  the  indictment.  That 
burden,  as  was  said  in  Turner  v.  Commonwealth,  86  Pa.  54, 
never  shifts,  but  rests  on  the  prosecution  throughout ;  so  that,  in 
all  cases,  a  conviction  can  be  had  only  after  the  jury  has  been 
convinced,  beyond  a  reasonable  doubt,  of  the  defendant's  guilt. 


44  NATURE   AND   ELEMENTS. 

It  necessarily  follows  that,  if  the  evidence  is  such  as  to  leave  a 
reasonable  doubt  in  the  minds  of  the  jury  as  to  the  existence  of 
any  necessary  ingredient  of  the  crime  charged,  they  should  give 
the  defendant  the  benefit  of  that  doubt.  But  presumptions  of 
fact  sometimes  stand  for  full  and  express  proof  until  the  con- 
trary is  shown.  For  example,  inasmuch  as  sanity  is  the  normal 
condition  of  man,  every  one  is  presumed  to  be  sane,  and  that  pre- 
sumption holds  good,  and  is  the  full  equivalent  of  express  proof, 
until  it  is  successfully  rebutted.  When  insanity  of  the  defendant 
is  set  up  as  a  defence,  it  is  incumbent  on  him  to  rebut  the  ordi- 
nary presumption  of  sanity,  and  show,  not  beyond  a  reasonable 
doubt,  nor  either  clearly  or  conclusively,  but  by  fairly  prepon- 
derating evidence,  such  as  is  ordinarily  required  to  prove  a  fact 
in  civil  issues,  that  he  was  insane  at  the  time  of  committing  the 
alleged  crime.  In  Lynch  v.  Commonwealth,  77  Pa.  205,  213, 
the  trial  judge  refused  to  charge  "that,  if  the  jury  have  a  reason- 
able doubt  as  to  the  condition  of  the  defendant's  mind  at  the 
time  the  act  was  done,  he  is  entitled  to  the  benefit  of  such 
doubt,  and  they  cannot  convict;"  and,  for  further  answer  to  the 
point,  said:  "The  law  of  this  State  is  that  where  the  killing  is 
admitted,  and  insanity  or  want  of  legal  responsibility  is  alleged 
as  an  excuse,  it  is  the  duty  of  the  defendant  to  satisfy  the  jury 
that  insanity  actually  existed  at  the  time  of  the  act;  a  mere  doubt 
as  to  such  insanity  will  not  justify  the  jury  in  acquitting  on  that 
ground."  That  instruction  was  approved  by  this  court,  and  sub- 
stantially the  same  instruction  was  afterwards  sanctioned  in 
Ortwein  v.  Commonwealth,  76  Pa.  421,  425,  and  other  cases. 
In  Coyle  v.  Commonwealth,  100  Pa.  573,  the  same  rule  of  evi- 
dence was  again  recognized.  It  was  further  held  to  be  error,  in 
that  case,  to  instruct  the  jury  that  the  defence  of  insanity 
should  be  proved  by  clearly  preponderating  evidence.  The  in- 
struction should  have  been  "fairly  preponderating,"  instead  of 
"clearly  preponderating  evidence."  Speaking  of  the  degree  of 
proof  required  by  the  words  employed  in  that  case,  Mr.  Justice 
Mercur,  said :  "It  is  demanding  a  higher  degree  of  proof  than  the 
authorities  require.  It  may  be  satisfactorily  proved  by  evidence 
which  fairly  preponderates.  To  require  it  to  clearly  preponderate, 
is  practically  saying  it  must  be  proved  beyond  all  doubt  or  uncer- 
tainty. Nothing  less  than  this  will  make  it  clear  to  the  jury." 


COMMONWEALTH   V.   GERADE.  45 

As  applied  to  the  degree  of  proof  required  to  rebut  the  presump- 
tion of  sanity,  and  sufficiently  prove  the  existence  of  insanity, 
there  is  no  appreciable  difference  between  the  expressions 
'•'clearly  proved"  and  "proved  by  clearly  preponderating  evi- 
dence." If  there  is  any  difference,  the  former  calls  for  the  higher 
degree  of  proof.  It  is  almost  equivalent  to  saying  "proved  be- 
yond a  reasonable  doubt;"  because,  if  any  doubt  as  to  the  ex- 
istence of  a  particular  fact  exists,  it  cannot  be  said  to  be  "clearly 
proved." 

It  is  true  that  the  learned  judge,  in  another  part  of  his  some- 
what lengthy  charge,  said  to  the  jury:  "You  have  to  be  satisfied 
of  his  insanity  by  the  preponderance  of  the  evidence.  He  has  to 
establish,  in  other  words,  his  insanity,  not  by  the  rule  of  a  rea- 
sonable doubt,  but  by  the  testimony,  what  the  preponderance  of 
the  evidence  shows."  But,  with  two  measures  of  proof  before 
them,  one  substantially  correct  and  the  other  erroneous,  how  is 
it  possible  for  us  to  determine  which  the  jury  adopted?  There 
should  be  nothing  left  to  conjecture,  especially  in  a  capital  case. 
It  is  enough  to  know  that  the  jury  may  have  been  misled  by  er- 
roneous instructions  on  a  point  vital  to  the  defence. 

The  testimony  referred  to  in  the  sixth,  eighth,  ninth  and 
tenth  specifications  appears  to  have  been  neither  incompetent  nor 
irrelevant,  and  we  think  it  should  have  been  admitted.  Neither 
of  the  remaining  specifications  of  error  requires  special  notice. 
That  part  of  the  charge  embraced  in  the  eighteenth  specifica- 
tion of  error  contains  some  expressions  of  opinion,  etc.,  that 
might  have  been  profitably  omitted,  but  we  are  not  prepared  to 
say  that  they  are  positively  erroneous. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

State  v.  Reidell,  9  Houst.  470;  Com.  v.  Woodley,  166  Pa.  St.  463;  Bon- 
fanti  v.  State,  2  Minn.  123;  State  v.  Nixon,  32  Kan.  205;  State  v.  Cle- 
ments, 17  So.  502;  People  v.  Ward,  38  P.  945,  105  Cal.  335;  State  v.  Craw- 
ford, 14  Am.  L.  Reg.  21  and  note;  State  v.  Mo  wry,  37  Kan.  369,  375; 
Pannell  v.  Com.,  86  Pa.  260;  Meyers  v.  Com.,  83  Pa.  St.  131;  Brown  v. 
Com.,  78  Pa.  St.  122;  Ortwein  v.  Com.,  76  Pa.  St.  421;  Lynch  v.  Com., 
77  Pa.  St.  205;  People  v.  Myers,  20  Cal.  518;  People  v.  Coffman,  24  Cal. 
231;  People  v.  Messersmith,  61  Cal.  246;  People  v.  Travers,  88  Cal.  233; 
People  t?.  McNulty,  93  Cal.  427;  Clark,  p.  58;  Wharton,  Sec.  60;  Hawley 
&  McGregor,  p.  15. 


46  NATURE  AND   ELEMENTS. 


(3)  Intoxication. 

Voluntary  drunkenness  is  no  defence  to  a  criminal  act 
committed  while  in  that  condition. 

FLANIGAN  v.  THE  PEOPLE. 

Court  of  Appeals  of  the  State  of  New  York,  1881. 
86  N.  Y.  554. 

ERROR  to  the  General  Term  of  the  Superior  Court  of  the  city 
of  Buffalo,  to  review  judgment  entered  upon  an  order  made  July 
23,  1881,  which  affirmed  a  judgment  of  a  criminal  term  of  said 
court,  entered  upon  a  verdict  convicting  the  plaintiff  in  error  of 
the  crime  of  murder  in  the  first  degree. 

The  plaintiff  in  error  was  indicted  for  the  murder  of  one  John 
Karins.  It  appeared  by  the  evidence  that  the  deceased  kept  a 
boarding-house  for  laborers  upon  a  railroad,  and  also  was  fore- 
man or  boss.  The  prisoner  boarded  with  Karins,  and  had 
formerly  been  at  work  under  him,  but  about  three  months  be- 
fore the  murder  Karins  caused  him  to  be  discharged.  The  pri- 
soner went  to  Karins'  room  about  10  or  11  p.  M.,  and  stabbed 
him  while  he  was  asleep.  The  prisoner  was  in  the  habit  of  drink- 
ing to  excess  and  was  frequently  intoxicated;  he  had  been  drink- 
ing heavily  on  the  day  of  the  murder. 

The  prisoner's  counsel,  among  other  things,  requested  the 
court  to  charge  "that  from  all  the  evidence  in  the  case  the  jury 
may  believe,  if  they  see  fit,  that  the  prisoner  may  have  been  the 
victim  of  an  appetite  for  drink  entirely  overcoming  his  will  and 
amounting  to  a  disease;  and  if  they  do  so  believe  they  must  ac- 
quit the  prisoner,  unless  they  believe,  beyond  a  reasonable  doubt, 
that  the  act  was  not  committed  while  his  mind  was  overwhelmed 
by  the  effects  of  the  liquor  so  taken." 

The  court  refused  so  to  charge,  and  said  counsel  duly  ex- 
cepted. 

Said  counsel  also  requested  the  court  to  charge  "that  the  jury 
may  take  into  consideration  the  question  of  drunkenness  as  af- 


FLANIGAN   V.   THE   PEOPLE.  47 

fecting  each  of  the  facts  of  deliberation  or  premeditation."  The 
court  declined  to  so  charge  and  an  exception  was  duly  taken. 

Said  counsel  also  asked  the  court  to  charge  "that  the  jury  may 
take  into  consideration  the  question  of  drunkenness  as  affecting 
the  fact  of  deliberation." 

To  this  the  court  replied,  "I  have  charged  that,  I  think;  I 
leave  that  to  the  jury,  as  to  the  two  degrees  of  murder,  and 
whether  there  was  deliberation  or  not." 

The  court  did  charge  at  the  request  of  said  counsel  "that  from 
all  the  evidence  in  the  case  the  jury  may  believe  that  the  act  of 
which  the  prisoner  is  charged  may  have  been  done  in  a  moment 
of  drunken  frenzy;  and  that  if  they  do  so  believe,  they  cannot 
predicate  deliberation  or  premeditation  of  the  act,  and,  therefore, 
cannot  find  the  prisoner  guilty  of  more  than  manslaughter  in 
one  of  its  degrees." 

Said  counsel  also  requested  the  court  to  charge  that  "if  the 
jury  believe  that  the  prisoner  was  under  the  influence  of  liquor, 
or  drunk,  at  the  time  of  the  commission  of  this  act,  they  may 
take  into  consideration  his  drunkenness  as  to  whether  it  does 
not  render  more  weighty  the  presumption  of  his  having  yielded 
to  sudden  passion,  rather  than  to  previous  malice." 

To  this  the  court  replied,  "I  will  charge  that  the  jury  may 
look  at  that  consideration." 

MILLER,  J.  It  is  claimed  that  the  judge  erred  upon  the  trial 
in  refusing  to  charge,  as  requested  by  the  prisoner's  counsel, 
"that,  from  all  the  evidence  in  the  case,  the  jury  may  believe,  if . 
they  see  fit,  that  the  prisoner  may  have  been  the  victim  of  an  ap- 
petite for  drink,  entirely  overcoming  his  will  and  amounting  to 
a  disease;  and  that,  if  they  so  believe,  they  must  acquit  the  pri- 
soner, unless  they  believe,  beyond  a  reasonable  doubt,  that  the 
act  was  not  committed  while  his  mind  was  overwhelmed  by  the 
effects  of  the  liquor  so  taken."  The  proposition  contained  in  this 
request  was  to  the  effect  that  the  jury  were  authorized  to  believe 
that  the  prisoner  was  the  subject  of  an  appetite  for  intoxicating 
drinks,  which  entirely  controlled  his  will,  and  to  the  extent  of  be- 
coming a  disease,  and  that  he  was  not  responsible  unless  the 
crime  was  committed  while  he  was  not  under  the  influence  of 
such  disease. 


48  NATURE   AND   ELEMENTS. 

The  effect  of  this  proposition  would  be  to  excuse  the  prisoner 
from  the  consequences  of  the  crime  committed,  if  he  was  labor- 
ing under  intoxication  so  that  his  will  was  overcome,  and  not 
under  his  control  at  the  time;  in  other  words,  that  drunkenness, 
if  carried  to  the  extent  of  producing  incapacity  to  control  the 
action  of  the  mind  and  will  of  the  prisoner,  would  be  an  excuse 
for  the  crime  committed. 

The  rule  is  well  settled  that  voluntary  intoxication  of  one 
who,  without  provocation,  commits  a  homicide,  although 
amounting  to  a  frenzy,  does  not  exempt  him  from  the  same  con- 
struction of  his  conduct,  and  the  same  legal  inferences,  upon  the 
question  of  intent,  as  affecting  the  grade  of  his  crime,  which  are 
applicable  to  a  person  entirely  sober.  (People  v.  Rogers,  18 
N.  Y.  9.) 

Within  the  rule  laid  down  in  the  case  cited,  we  think  that  the 
request  to  charge  cannot  be  sustained.  The  position  of  the 
learned  counsel  for  the  prisoner  is,  that  he  had  a  right  to  go  to 
the  jury  upon  the  question  whether  intoxication  was  a  disease, 
as  described  in  the  request,  and  whether  the  prisoner  was  afflicted 
with  it,  and,  if  the  jury  found  both  of  these  facts,  the  drunkenness 
could  not  have  been  voluntary,  and,  if  the  jury  believed  the  mind 
was  overwhelmed  by  means  thereof,  that  the  prisoner  must  be 
excused  as  an  insane  man.  It  may  be  answered  that  no  such  dis- 
tinct request  was  made;  but  aside  from  this,  the  position  taken 
would  be  adverse  to  the  principle  which  has  been  established  by 
a  long  series  of  decisions,  and,  if  enforced,  might  lead  to  exonerate 
offenders  for  crimes  committed  by  them  when  under  the  influence 
of  intoxicating  drinks,  and  thus  furnish  an  excuse  for  the  com- 
mission of  the  most  heinous  offences.  The  authorities  all  agree 
upon  the  proposition  that  mental  alienation,  produced  by  drink- 
ing intoxicating  liquors,  furnishes  no  immunity  for  crime,  and, 
to  sustain  the  doctrine  asserted,  it  would  be  necessary  to  overrule 
this  well-established  principle.  The  proposition  contained  in  the 
request  was  also  objectionable,  as  it  assumed  that,  if  the  prisoner 
had  become  the  victim  of  an  appetite  for  strong  drinks  so  as  to 
overcome  his  will,  and  amounting  to  a  disease,  even  although  he 
was  able  to  distinguish  between  right  and  wrong  at  the  time  of, 
and  with  respect  to,  the  act  committed,  he  should  be  acquitted. 
(Flanagan  v.  The  People,  52  1ST.  Y.  467.) 


FLANIGAN   V.   THE   PEOPLE.  49 

The  finding  of  the  jury  that  the  prisoner  was  affected  with  the 
alleged  disease  would  not  exonerate  him  from  responsibility  for 
the  crime,  and  his  intoxication  did  not  authorize  the  court  to 
charge  as  requested. 

No  error  was,  therefore,  committed  in  the  refusal  of  the  judge 
to  grant  the  request,  nor  was  there  any  error  in  the  refusal  of 
the  judge  to  charge,  as  requested,  that  the  jury  might  "take  into 
consideration  the  fact  of  drunkenness,  as  affecting  each  of  the 
questions  of  deliberation  and  premeditation." 

The  question  presented  by  this  request  has  been  the  subject  of 
consideration  in  the  reported  decisions  in  the  courts  of  this  State. 
In  The  People  v.  Rogers  (supra),  a  request  was  made  by  the  pri- 
soner's counsel  to  charge  the  jury  to  the  effect  that  drunkenness 
might  exist  to  such  a  degree  that  neither  an  intention  to  murder 
nor  a  motive  for  the  act,  could  be  imputed  to  the  prisoner.  The 
request  was  refused,  and  Denio,  J.,  in  discussing  the  question, 
says:  "This  would  be  precisely  the  same  thing  as  advising  them 
that  they  might  acquit  of  murder  on  account  of  the  prisoner's  in- 
toxication if  they  thought  it  sufficient  in  degree.  It  has  been 
shown  that  this  would  be  opposed  to  a  well-established  principle 
of  law."  He  further  remarks:  "The  judge  ought  to  have  charged 
that  if  a  man  makes  himself  voluntarily  drunk,  that  is  no  excuse 
for  any  crime  he  may  commit  while  he  is  so,  and  that  he  must 
take  the  consequences  of  his  own  voluntary  act."  The  doctrine 
thus  laid  down  in  principle  would  sustain  the  refusal  of  the  judge 
to  charge  as  requested  in  the  case  at  bar.  In  Kenny  v.  The  Peo- 
ple (31  N".  Y.  330),  the  prisoner  was  convicted  of  murder  in  the 
first  degree,  committed  while  in  a  state  of  voluntary  intoxication, 
upon  a  sudden  impulse.  The  court  instructed  the  jury  that 
voluntary  intoxication  can  furnish  no  excuse  or  immunity  for  crime, 
and  so  long  as  the  offender  is  capable  of  conceiving  a  design,  he 
will  be  presumed,  in  the  absence  of  contrary  proof,  to  have  in- 
tended the  natural  consequences  of  his  own  acts.  The  judge  was 
requested  to  charge,  among  other  things,  that  intoxication  may 
be  considered  in  determining  whether  the  homicide  was  com- 
mitted by  a  premeditated  design,  which  was  refused,  and  it  was 
held  by  this  court  that  there  was  no  error  in  declining  to  charge 
as  requested,  and  Potter,  J.,  cites  from  The  People  v.  Rogers, 
the  remarks  we  have  already  quoted  from  the  opinion  in  that 
4 


50  NATURE   AND   ELEMENTS. 

case,  and  says,  that  "The  People  v.  Rogers,  and  the  opinions  de- 
livered therein  and  the  authorities  cited,  are  conclusive  and  con- 
trol this  case."  He  further  remarks  that  "the  rule  established  in 
that  case,  and  in  fact  the  uniform  rule  in  all  the  cases  is,  that 
where  the  act  of  killing  is  unequivocal  and  unprovoked,  the  fact 
that  it  was  committed  while  the  perpetrator  was  intoxicated  can- 
not be  allowed  to  affect  the  legal  character  of  the  crime."  This 
case  is  directly  in  point  in  regard  to  the  subject  of  premeditation, 
and  the  principle  laid  down  would  seem  to  cover  deliberation 
also.  As,  however,  the  judge  subsequently,  in  response  to  a  re- 
quest made  by  the  prisoner's  counsel  to  the  effect  that  the  jury 
might  take  into  consideration  the  question  of  drunkenness  as  af- 
fecting the  fact  of  deliberation,  said  that  he  had  so  charged  and 
had  left  it  to  the  jury  to  determine  as  to  the  degree  of  murder 
and  whether  there  was  deliberation,  and  thus  allowed  the  jury  to 
consider  the  intoxication  of  the  prisoner  in  reference  to  delibera- 
tion, it  is  not  necessary  to  determine  the  question  whether  the  re- 
fusal to  charge  as  to  deliberation  was  erroneous. 

The  judge  also  charged,  in  response  to  a  request  of  the  pri- 
soner's counsel,  that  if  the  jury  believed  that  the  prisoner  was 
under  the  influence  of  liquor  or  drink  at  the  time  of  the  com- 
mission of  the  act,  they  might  take  into  consideration  the 
drunkenness  of  the  prisoner  as  to  whether  it  did  not  render  more 
weighty  the  presumption  of  his  having  yielded  to  sudden  passion 
rather  than  to  previous  malice.  In  an  earlier  portion  of  his 
charge,  he  stated  that  premeditation  and  deliberation  was  essen- 
tial to  establish  murder  in  the  first  degree,  and  the  entire  charge 
on  the  question  discussed  was  quite  as  favorable  to  the  prisoner 
as  the  evidence  warranted.  The  evidence  was  quite  clear  as  to 
the  intention  of  the  prisoner,  and  to  sanction  a  rule  that  his 
drunkenness  was  an  excuse  would  be  adverse  to  the  whole  cur- 
rent of  authority  and  what  has  been  understood  to  be  well-estab- 
lished law. 

There  was  no  error  in  the  refusal  of  the  judge  to  direct  the 
jury,  as  requested  by  the  prisoner's  counsel,  that  they  could  not 
find  the  prisoner  guilty  of  more  than  murder  in  the  second  de- 
gree. The  proposition  contained  in  this  request  assumes  that 
there  was  no  evidence  of  premeditation  or  deliberation  upon 
which  the  jury  could  find  the  prisoner  guilty  of  murder  in  the 


FLANIGAN  V.   THE   PEOPLE.  51 

first  degree.  This  .assumption  was  not  warranted.  The  evidence 
showed  that,  about  three  months  previous  to  the  murder,  the  pri- 
soner had  been  at  work  as  a  laborer  under  the  deceased,  who  had 
discharged  or  caused  him  to  be  discharged;  that  the  prisoner  en- 
tertained unfriendly  feelings  toward  the  deceased;  that  shortly 
after  the  murder  he  declared  he  had  fixed  him  at  last;  that  the 
deceased  had  abused  him;  that  he  had  satisfaction  now;  that  he 
was  not  drunk,  and  knew  what  he  was  doing  and  saying,  and  used 
language  indicating  that  he  had  acted  with  a  deliberate  purpose 
and  a  premeditated  design  to  effect  his  death.  It  also  appeared 
that  he  went  to  the  room  of  deceased  and  with  no  immediate 
cause  for  provocation,  and  while  the  deceased  lay  there  uncon- 
scious of  danger,  he  turned  down  the  bed-clothes  and  stabbed 
him  with  a  knife  to  the  heart,  using  strong  and  abusive  language 
at  the  time.  The  evidence  was  quite  clear  that  the  prisoner  had 
conceived  the  murder  of  the  deceased,  and  even  although  he  was 
under  the  influence  of  intoxicating  drinks,  it  cannot  be  claimed, 
upon  any  sound  principle,  that  there  was  no  question  for  the  jury 
to  determine  as  to  the  deliberation  and  premeditation  of  the  pri- 
soner. 

Several  questions  are  raised  as  to  the  ruling  of  the  judge  upon 
the  trial  in  regard  to  the  testimony.  The  answer  of  the  witness 
Flanigan  upon  re-direct  examination,  as  to  the  declaration  of 
the  prisoner  after  the  crime  was  committed,  to  wit:  "I  have 
stabbed  Karins,  get  a  mass  said  for  my  soul,"  is  not  liable  to  any 
valid  objection.  What  he  said  as  to  having  a  mass  said  for  his 
soul  was  not  objected  to,  and  no  exception  was  taken  to  the  evi- 
dence, nor  was  there  any  abuse  of  discretion  on  the  part  of  the 
judge  in  allowing  the  question  to  which  this  response  was  an 
answer. 

The  weight  to  be  given  to  the  evidence,  under  the  circum- 
stances, was  for  the  jury  to  determine,  in  view  of  the  facts. 

Nor  was  any  error  committed  in  excluding  the  question  put 
upon  the  cross-examination  to  the  witness,  Flanigan,  as  to  the 
time  when  he  went  to  a  certain  place,  which  was  named.  It  was 
not  material,  related  to  a  period  some  time  after  he  had  seen  the 
prisoner,  and  after  the  full  examination  which  had  been  per- 
mitted, it  was  discretionary  with  the  judge  to  determine  whether 
the  inquiry  should  be  further  pursued.  (People  v.  Casey,  72  !N". 
Y.  393-390.) 


52  NATURE   AND    ELEMENTS. 

The  question  put  to  the  witness,  Mrs.  Mangan,  as  to  her  pay- 
ing the  fine  of  the  prisoner  when  he  had  been  arrested  for  drink- 
ing, was  irrelevant,  and  could  have  no  direct  or  remote  bearing 
upon  the  question  arising  as  to  the  prisoner's  guilt  or  innocence. 
It  was  rather  remote  for  the  purpose  of  accounting  for  the  pri- 
soner being  at  the  house,  and  the  testimony  would  not  aid,  we 
think,  in  contradicting  the  presumption  of  an  intention  to  kill, 
or  in  showing  that  the  act  was  rather  one  of  temporary  insanity 
or  a  drunken  frenzy,  than  deliberation  and  premeditation.  Above 
all,  what  had  been  done  by  or  for  the  prisoner  on  prior  occasions 
could  not  affect,  in  any  way,  his  acts  and  conduct  at  the  time  the 
crime  was  committed,  or  relieve  him  from  responsibility  for  the 
same. 

No  other  question  is  presented  by  the  counsel  for 'the  prisoner, 
and  we  are  brought  to  the  conclusion  that  no  error  was  committed 
upon  the  trial  which  demands  a  reversal  of  the  conviction.  The 
judgment  should,  therefore,  be  affirmed,  and  the  record  remitted 
to  the  court  below,  with  directions  to  proceed  as  required  by 
law. 

All  concur;  Andrews,  J.,  entertained  some  doubt  upon  the 
point  whether  the  court  did  not  err  in  refusing  to  charge  that  the 
jury  might  consider  the  fact  of  drunkenness  upon  the  point  of 
premeditation,  as  well  as  upon  the  point  of  deliberation. 

Judgment  affirmed. 

Osborn  v.  State,  26  S.  W.  625;  State  v.  Murphy,  118  Mo.  7,  25  S.  W.  95; 
Lyle  v.  State,  31  Tex.  Cr.  Rep.  103;  People  v.  Rogers,  18  N.  Y.  9;  Raf- 
ferty  v.  People,  66  111.  118;  People  v.  Lewis,  36  Cal.  531;  Fonville  v. 
State,  91  Ala.  39;  Beck  v.  State,  76  Ga.  452;  State  v.  Lowe,  93  Mo.  547; 
State  v.  Gut,  13  Minn.  341;  State  v.  Herdina,  25  Minn.  161;  State  v. 
Grear,  28  Minn.  426;  U.  S.  v.  McGlue,  1  Curtis  1;  Shannahan  «.  Com., 
8  Bush.  463;  Swan  v.  State,  4  Humph.  136;  Com.  v.  Hawkins,  3  Gray 
463;  Com.  v.  Malone,  114  Mass.  295;  State  v.  Hundley,  46  Mo.  414;  Cluck 
v.  State,  40  Ind.  263;  People  v.  O'Connell,  62  How.  Pr.  436;  People  v. 
Robinson,  1  Park  Cr.  649;  Rex  v.  Carroll,  7  C.  &  P.  145;  People  v.  Lewis, 
36  Cal.  531;  People  v.  Williams,  43  Cal.  344;  U.  S.  v.  Drew,  5  Mason  28; 
Rafferty  v.  People,  66  111.  118;  Haile  v.  State,  11  Humph.  153;  Pirtle  v. 
State,  9  Humph.  663;  Clark,  p.  60;  Bishop  I.,  Sec.  399  et  seq;  Wharton, 
Sec.  48  et  seq;  Hawley  &  McGregor,  p.  20;  The  Penal  Code  of  Pa.; 
Shields,  vol.  I.,  400,  404,  406,  410,  416,  430,  450. 


FLANIGAN   V.   THE   PEOPLE.  53 

NOTE.— The  early  common  law  doctrine  was  that  drunkenness  aggra- 
vated instead  of  mitigating  the  offense. 

State  v.  Thompson,  Wright  (Ohio)  617;  U.  S.  v.  Forbes,  Crabbe  558; 
Clark,  p.  65;  Wharton,  Sec.  49. 

NOTE. — In  some  States  if  the  accused  did  not  become  intoxicated  for 
the  purpose  of  committing  the  crime,  nor  intended  to  commit  the  crime 
before  he  became  intoxicated,  and  was  so  drunk  at  the  time  of  com- 
mitting the  offence  as  not  to  know  what  he  was  doing,  he  cannot  be 
convicted. 

State  v.  Davis,  9  Houst.  407,  33  Atl.  Rep.  55;  State  v.  Garvey,  11  Minn. 
95;  Aszman  v.  State,  123  Ind.  347;  8  L.  R.  A.  33;  Clark,  p.  65;  Bishop  I., 
Sec.  405. 

NOTE. — Specific  intent.  Drunkenness  is  a  defence  when  a  specific  in- 
tent is  an  essential  ingredient  of  the  crime;  or  it  may  be  shown  to  les- 
sen the  degree  of  the  offense,  when  it  depends  upon  malice  or  delibera- 
tion. 

People  v.  Walker,  38  Mich.  156;  State  v.  Robinson,  20  W.  Va.  713; 
State  v.  Johnson,  40  Conn.  136;  Hopt  v.  People,  104  U.  S.  631;  State  v. 
Bell,  29  la.  316;  People  v.  Blake,  65  Cal.  275;  Roberts  v.  People,  19  Mich. 
401;  Marshall  v.  State,  59  Ga.  154;  People  v.  Harris,  29  Cal.  679;  People 
v.  Eastwood,  14  N.  Y.  562;  Wood  v.  State,  34  Ark.  341;  Mooney  v.  State, 
33  Ala.  419;  Golliher  v.  Com.,  2  Duval  163;  State  t>.  Avery,  44  N.  H.  392; 
Nichols  v.  State,  8  Ohio  St.  435;  Lytle  v.  State,  31  Ohio  St.  196;  Pegman 
v.  State,  14  Ohio  555;  Minn.  Stat.  1894,  Sec.  6304;  N.  Y.  Penal  Code, 
Sec.  22;  Clark,  p.  62;  Bishop  I.,  Sec.  408  et  seq;  Wharton,  Sec.  52;  Haw- 
ley  &  McGregor,  p.  22. 

(4)  Coverture. 

At  common  law  by  virtue  of  the  coverture  theory  married 
women  were  prima  facie  not  liable  for  crimes  committed  in 
their  husbands'  presence.  This  presumption  did  not  cover 
cases  of  treason,  murder  and  robbery. 

Com.  v.  Neal,  10  Mass.  152;  Com.  v.  Burk,  11  Gray  437;  Com.  v.  Welch, 
97  Mass.  593;  Com.  v.  Eagan,  103  Mass.  71;  State  v.  Fitzgerald,  49  la. 
260;  State  v.  Kelly,  74  la.  589;  Com.  v.  Gannon,  97  Mass.  547;  Edwards 
v.  State,  27  Ark.  493;  People  v.  Wright,  38  Mich.  744;  Tabler  t>.  State,  34 
Ohio  St.  127;  Clark,  p.  77  et  seq;  Bishop  I.,  Sec.  356  et  seq;  Wharton,  Sec. 
75  et  seq;  Hawley  &  McGregor,  p.  16. 

NOTE. — Some  States  do  not  recognize  this  doctrine. 

Minn.  Stat.  1894,  Sec.  6306;  N.  Y.  Penal  Code,  Sec.  24;  Freel  v.  State, 
21  Ark.  212;  Edwards  v.  State,  27  Ark.  493. 


64  NATURE   AND    ELEMENTS. 


(5)  Corporations. 

Corporations  are  generally  liable  for  their  criminal  acts ; 
but  some  crimes,  from  its  nature,  a  corporation  cannot 
commit. 

THE  STATE  v.  THE  MOEKIS  AND  ESSEX  KAILEOAD  Co. 

Supreme  Court  of  New  Jersey,  1852. 
23  N.  J.  L.  360. 

THE  CHIEF  JUSTICE.  The  indictment  charges  the  defendants 
with  the  creation  of  a  nuisance,  by  erecting  a  building  upon  the 
public  highway  and  continuing  it  there;  and  also  by  placing  cars 
in  the  public  highway,  and  suffering  them  to  remain  therein. 
The  single  question  presented  for  the  consideration  of  the  court 
is,  whether  a  corporation  aggregate  is  liable  to  be  proceeded 
against  by  indictment  for  any  offence  committed  by  active  means 
or  by  an  affirmative  act,  which  must  of  necessity  be  charged  to 
have  been  done  vi  et  armis. 

The  law  is  well  settled,  that  a  corporation  aggregate  is  liable 
to  indictment.  It  is  said,  indeed,  by  Blackstone,  that  a  corpora- 
tion cannot  commit  treason,  felony,  or  other  crime,  in  its  cor- 
porate capacity,  citing  the  case  of  Sutton's  Hospital,  10  Coke  32. 
The  original  authority  is  simply,  that  a  corporation  cannot  com- 
mit treason.  While  it  is  conceded  that  a  corporation  cannot,  from 
its  nature,  be  guilty  of  treason,  felony,  or  other  crime  involving 
mains  animus  in  its  commission,  it  is  believed  that  there  is  no 
authority,  ancient  or  modern,  which  denies  the  liability  of  a  cor- 
poration aggregate  to  indictment,  except  an  anonymous  case, 
said  to  have  been  decided  by  Chief  Justice  Holt,  in  the  Court  of 
King's  Bench,  in  the  13  Will.  3  (1701).  The  case  is  reported,  in 
12  Mod.  559,  briefly  as  follows:  "i^ote  per  Holt,  Chief  Justice. 
A  corporation  is  not  indictable,  but  the  particular  members  of  it 
are."  It  may  well  be  doubted  whether  this  is  not  one  of  those 
cases  which  extorted  from  Lord  Holt  the  bitter  complaint  of  his 
reporters,  "that  the  stuff  which  they  published  would  make  pos- 
terity think  ill  of  his  understanding,  and  that  of  his  brethren  on 


THE  STATE  V.   THE   MORRIS   AND   E&SEX    R.   R.   CO.  55 

the  bench."  Aside  from  the  apocryphal  character  of  the  report, 
it  is  hardly  credible  that  so  learned  and  accurate  a  judge  as  Lord 
Holt  should  have  laid  down  the  broad  proposition  imputed  to 
him  by  his  reporter.  It  is  certain  that  while  he  was  chief  justice 
of  the  King's  Bench,  there  were  cases  before  that  court  of  indict- 
ments against  quasi  corporations  for  neglect  to  repair  roads  and 
bridges. 

Regma  v.  The  County  of  Wilts,  1  Salk.  359;  The  Queen  v. 
The  Inhabitants  of  Cluworth,  6  Mod.  163,  S.  C.;  1  Salk.  359,  and 
in  the  Queen  v.  Saintiff,  6  Mod.  255,  Lord  Holt  himself  held, 
that  if  a  common  footway  be  in  decay,  an  indictment  must  of 
necessity  lie  for  it,  because  an  action  will  not  lie  without  a  spe- 
cial damage.  It  seems  to  be  true,  moreover,  as  was  stated  by 
Talfourd,  Sergeant  Arguendo,  in  the  Queen  v.  Railway  Co.,  3 
Queen's  Bench  227,  that  although  there  was  at  that  time  no  di- 
rect authority  in  England  for  the  position,  that  a  corporation  ag- 
gregate is  indictable  in  the  corporate  name,  yet  the  course  of  pre- 
cedents has  been  uniform  for  centuries,  and  the  doctrine  has 
frequently  been  taken  for  granted,  both  in  arguments  and  by 
the  judges.  The  case  of  Langforth  Bridge,  Cro.  Car.  365  (1635); 
Regina  v.  The  Inhabitants  of  the  County  of  Wilts,  1  Salk.  359 
(1705);  The  King  v.  Inhabitants  of  the  West  Riding  of  York- 
shire, 2  Blac.  Rep.  685  (1770);  Rex  v.  The  Inhabitants  of  Great 
Foughton,  5  Burr.  2700  (1771);  The  King  v.  The  Inhabitants 
of  Clifton,  5  D.  &  E.  499  (1794);  Rex  v.  The  Corporation  of 
Liverpool,  3  East  86  (1802);  Rex  v.  Mayor  of  Stratford  upon 
Avon,  14  East  348  (1811);  Rex  v.  The  City  of  Gloucester, 
Dougherty's  Crown  Circ.  Ass.  259. 

Notwithstanding  the  frequent  instances  to  be  found  in  the 
books  of  indictments  against  aggregate  corporations  for  neglect 
of  duty  imposed  by  law,  the  liability  of  a  corporation  to  indict- 
ment was  not  expressly  adjudicated  in  Westminster  Hall  until 
the  very  recent  case  of  The  Queen  v.  The  Birmingham  and 
Gloucester  Railway  Co.,  9  Car.  &  Payne  469,  3  Queen's  Bench 
223.  In  that  case,  it  was  directly  adjudged  that  a  corporation  ag- 
gregate may  be  indicted  by  their  corporate  name  for  disobedience 
to  an  order  of  justices  requiring  such  corporation  to  execute 
works  pursuant  to  a  statute. 

The  same  principle   has   been  repeatedly   recognized   in   the 


56  NATURE  AND   ELEMENTS. 

American  courts,  both  before  and  since  the  decision  in  The 
Queen  v.  The  Birmingham  and  Gloucester  Railway  Company. 
Mower  v.  Leicester,  9  Mass.  250;  Howard  v.  North  Bridgewater, 
16  Pick.  190;  The  Susquehanna  and  Bath  Turnpike  Co.  v.  The 
People,  15  Wend.  267;  Freeholders  v.  Strader,  3  Harr.  108. 

In  this  State,  there  is  an  express  legislative  recognition  of  the 
liability  of  corporations  to  indictment.  The  act  of  February  10, 
1837  (Rev.  Stat.  999),  provides  a  mode  of  compelling  the  appear- 
ance of  corporations  to  indictments,  and  of  enforcing  sentence 
upon  conviction.  It  is  not  understood  that  the  counsel  for  the 
defence  question  or  deny  the  liability  of  a  corporation  aggregate 
to  indictment.  The  question  discussed  upon  the  argument  was, 
not  whether  a  corporation  aggregate  may  be  indicted,  but  for 
what  offence  it  may  be  indicted,  or  what  offence  a  corporation 
aggregate  may  in  its  corporate  capacity  commit. 

It  is  insisted,  that  although  a  corporation  is  liable  to  indict- 
ment for  neglect  of  duty  or  mere  nonfeasance,  it  cannot  be  in- 
dicted for  any  offence  requiring  for  its  commission  a  direct  and 
positive  act.  I  am  aware  of  but  two  cases  in  which  this  question 
has  been  directly  presented  for  judicial  decision.  In  the  case  of 
The  State  v.  The  Great  Works  Milling  and  Man.  Co.,  20  Maine 
Rep.  41,  the  defendants  were  indicted  for  a  nuisance  in  the  erec- 
tion of  a  dam  across  the  Penobscot  river.  At  June  term,  1841, 
the  Supreme  Court  of  Maine  decided  that  the  indictment  could 
not  be  sustained,  on  the  ground  that  where  a  crime  or  misde- 
meanor is  committed  by  any  positive  or  affirmative  act,  under 
color  of  corporate  authority,  the  individuals  acting,  and  not  the 
corporation,  should  be  indicted. 

In  The  Queen  v.  The  Great  North  of  England  Railway  Co., 
9  Queen's  Bench  315,  the  defendants  were  indicted  for  cutting 
through  and  obstructing  a  highway,  by  works  performed  in  a 
course  not  conformable  to  the  powers  conferred  on  the  company 
by  act  of  parliament.  The  indictment,  after  solemn  argument 
and  deliberate  advisement,  was  sustained  by  the  unanimous  opin- 
ion of  the  Court  of  Queen's  Bench,  the  court  thus  sustaining  the 
principle,  that  a  corporation  aggregate  may  be  indicted  for  a  mis- 
feasance. 

These  two  authorities  being  directly  in  conflict,  it  may  be 
necessary  to  consider  the  principle  involved  in  the  inquiry.  It 


THE  STATE  V.   THE  MORRIS  AND   ESSEX   R.   R.   CO.  57 

being  conceded  that  an  indictment  will  lie  against  a  corporation 
aggregate  for  a  nonfeasance,  or  for  any  cause  whatever,  all  pre- 
liminary and  formal  objections  arising  out  of  the  invisibility  and 
intangibility  of  the  body  aggregate,  the  impossibility  of  arresting 
it,  its  inability  to  appear,  its  incapacity  for  punishment,  and  the 
injustice  of  punishing  innocent  stockholders  for  the  acts  of 
others,  are  at  once  disposed  of.  These  objections  apply,  it  is 
obvious,  with  equal  force  to  indictments  for  acts  of  nonfeasance. 
If  they  are  invalid  as  to  the  one,  they  are  equally  so  as  to  the 
other. 

But  it  is  said,  that  although  a  corporation  may  omit  to  per- 
form acts  made  obligatory  upon  it  by  law,  and  thus  be  liable  for 
nonfeasance,  yet  from  its  very  nature  it  cannot  use  force,  and 
therefore  cannot  commit  any  act  involving  force,  and  which  must 
be  charged  to  have  been  committed  vi  et  armis.  This  argument 
rests  entirely  upon  the  disability  of  the  corporation  to  commit 
any  act  of  trespass  or  positive  wrong,  and  applies  to  its  capacity 
to  commit  civil  as  well  as  criminal  injuries.  It  is  the  very  argu- 
ment by  which  it  was  sought  to  be  established  that  no  action  for 
a  trespass  or  tort  would  lie  against  a  corporation.  But  it  has  been 
well  said,  that  if  a  corporation  has  itself  no  hands  with  which  to 
strike,  it  may  employ  the  hands  of  others;  and  it  is  now  perfectly 
well  settled,  contrary  to  the  ancient  authorities,  that  a  corpora- 
tion is  liable  civiliter  for  all  torts  committed  by  its  servants  or 
agents  by  authority  of  the  corporation,  express  or  implied.  Thus 
it  is  liable  in  trover.  Tarborough  v.  The  Bank  of  England,  16 
East  6;  Duncan  v.  The  Surrey  Canal,  3  Stark.  50;  Foster  v.  The 
Essex  Bank,  17  Mass.  503 ;  Beach  v.  The  Fulton  Bank,  7  Cowen 
485.  In  case  for  indirect  injuries  resulting  from  tortious  acts  as 
well  as  from  negligence — Bridge  v.  The  Grand  Junction  Rail- 
way Co.,  3  Mees  &  W.  244;  The  Chestnut  Hill  Turnpike  Co.  v. 
Rutter,  4  Serg.  &  Rawle  6;  Thayer  v.  Boston,  19  Pick.  511; 
Bailey  v.  The  Mayor  of  New  York,  3  Hill  531  S.  C.  (in  error),  2 
Denio  433;  Baptist  Church  v.  Schenectady  and  Troy  Railroad, 
5  Barbour's  Supreme  Court  R.  79;  Wilson  v.  The  Rockland 
Manufacturing  Co.,  2  Harring's  R.  67.  In  trespass  quare 
clausum  fregit — Bloodgood  v.The  Mohawk  and  H.  Railroad  Co., 
14  Wend.  54,  S.  C.,  18  Wend.  9;  Thatcher  v.  The  Dartmouth 
Bridge  Co.,  18  Pick.  501;  The  Seneca  Railroad  Co.  v.  The  Au- 


58  NATURE  AND   ELEMENTS. 

burn  and  R.  Railroad  Co.,  5  Hill  170;  Van  Wormer  v.  The 
Mayor  of  Albany,  15  Wend.  262.  In  trespass  vi  et  armis  to  per- 
sonal property — .M  aund  v.  Monmouthshire  Canal  Co.,  4  Man,  & 
Gran.  452;  Hay  v.  Cohoes  Co.,  3  Harbour's  Sup.  Co.  R.  42; 
Whiteman's  Executors  v.  The  Wil.  and  Susq.  Railroad  Co.,  2 
Harring's  R.  514.  And  in  ejectment — Dater  v.  The  Troy  Rail- 
road and  Turnpike  Co.,  2  Hill  631. 

So  a  corporation  may  be  guilty  of  a  disseisin.  Second  Pre- 
cinct v.  Catholic  Cong.,  23  Pick.  140;  Proprietors  of  the  Canal 
Bridge  v.  Gordon,  1  Pick.  296;  and  even  of  an  assault  and  false 
imprisonment.  Eastern  Counties  Railway  Co.  v.  Brown,  2  Law 
and  Eq.  406. 

These  cases  have  all  arisen  within  the  present  century,  and 
are  certainly  in  conflict  with  the  ancient  doctrine,  as  laid  down 
by  the  venerable  sages  of  the  law,  if  not  by  the  authority  of  the 
courts.  Liber  Ass.  fol.  100,  pi.  67;  Brooke's  Ab.  "Corporations," 
43,  "Trespass,"  239;  Com.  Dig.  "Corporations,"  F.  19,  "Pleader" 
2  B.;  2  Impey's  Prac.  675;  2  Sell.  Pr.  78;  Viner's  Ab.  "Corpo- 
rations," P.  Sec.  2,  2  Sec.  15;  1  Saund.  P.  &  E.  386;  1  Bl.  Com. 
476;  1  Wooddeson's  Lee.  296;  and  8  l^ast  230,  per  Lawrence,  J. 

The  earlier  authorities,  denying  the  liability  of  corporations 
civiliter  for  torts,  are  nearly  all  traceable  to  the  dictum  of  Chief 
Justice  Thorpe,  in  Liber  Ass.  100,  pi.  67,  that  "a  writ  of  tres- 
pass lies  not  against  a  commonalty,  for,  he  said,  a  man  shall  never 
have  a  capias  or  exigent  against  a  commonalty."  From  this  view 
of  the  law,  it  would  seem  that  the  difficulty  in  holding  corpora- 
tions liable  civiliter  for  their  tortious  acts  was  originally  sup- 
posed to  consist  not  in  the  inability  of  the  corporations  to  com- 
mit the  wrong,  but  in  the  incapacity  of  the  courts  to  administer 
the  remedy. 

The  result  of  the  modern  cases  is,  that  a  corporation  is  liable 
civiliter  for  torts  committed  by  its  servants  or  agents  precisely  as 
a  natural  person;  and  that  it  is  liable  as  a  natural  person  for  the 
acts  of  its  agents,  done  by  its  authority,  express  or  implied, 
though  there  be  neither  a  written  appointment  under  seal,  nor  a 
vote  of  the  corporation  constituting  the  agency  or  authorizing 
the  act.  The  doctrine  is  founded  on  sound  principle,  and  applies, 
so  far  at  least  as  the  present  objection  is  concerned,  as  well  to 
the  criminal  as  to  the  civil  liability  of  the  corporation. 


THE   STATE  V.  THE   MORRIS   AND    ESSEX   R.    R.   CO.  59 

It  is  further  objected,  that  a  corporation  aggregate  cannot  be 
liable  to  indictment  for  any  crime,  because  the  commission  of 
the  criminal  act  is  not  warranted  by  their  corporate  powers.  This 
argument,  pushed  to  its  legitimate  conclusion,  would  exempt  a 
corporation  from  all  liability  for  wrongs,  civil  as  well  as  crim- 
inal. It  is  most  aptly  answered  by  Mr.  Binney,  in  his  argument 
in  The  Chestnut  Hill  Turnpike  Co.  v.  Rutter,  6  Binney  12. 
"According  to  the  doctrine  contended  for,  if  they  do  an  act 
within  the  scope  of  their  corporate  powers  it  is  legal,  and  they 
are  not  answerable  for  the  consequences.  If  the  act  be  not  within 
the  range  of  their  corporate  powers,  they  had  no  right  by  law  to 
do  it:  it  was  not  one  of  the  objects  for  which  they  were  incor- 
porated, and  therefore  it  is  no  act  of  the  corporation  at  all.  This 
doctrine  leads  to  absolute  impunity  for  every  species  of  wrong, 
and  can  never  be  sanctioned  by  any  court  of  justice." 

But  why  should  corporations  be  held  liable  for  nonfeasance, 
and  not  for  misfeasance?  why  for  neglect  of  duty,  and  not  for 
violation  of  law?  The  startling  incongruity  of  allowing  the  ex- 
emption, is  (as  was  said  by  Lord  Denman,  in  The  Queen  v.  The 
Great  North  of  England  Railway  Company),  one  strong  argu- 
ment against  it. 

It  is  said,  again,  that  the  individuals  who  concur  in  making 
the  order  or  in  doing  the  work  are  individually  responsible.  And 
so  is  every  servant  or  agent  by  whose  agency  a  tort  is  committed, 
but  it  has  never  been  supposed  that  the  principal  is  therefore 
exempt  from  liability.  On  the  contrary,  the  principle  and  the 
policy  of  the  law  has  ever  been  to  look  to  the  principal  rather 
than  to  the  mere  agent;  and  in  the  case  of  corporations,  it  is  the 
clear  dictate  of  sound  law  not  only,  but  of  public  policy,  to  look 
rather  to  the  corporation  at  whose  instance  and  for  whose  benefit 
the  wrong  is  perpetrated,  than  to  the  individual  directors  by 
whose  order  the  wrong  was  done,  who  may  be  entirely  unknown, 
or  to  the  laborers  by  whom  the  work  was  performed,  who  in  a 
great  majority  of  cases,  would  be  alike  unknown  and  irrespdns- 
ible. 

It  is  true  that  there  are  crimes  (perjury  for  example)  of  which 
a  corporation  cannot,  in  the  nature  of  things,  be  guilty.  There 
are  other  crimes,  as  treason  and  murder,  for  which  the  punish- 
ment imposed  by  law  cannot  be  inflicted  upon  a  corporation. 


60  NATURE   AND   ELEMENTS. 

Nor  can  they  be  liable  for  any  crime  of  which  a  corrupt  intent  or 
mains  animus  is  an  essential  ingredient.  But  the  creation  of  a 
mere  nuisance  involves  no  such  element.  It  is  totally  immaterial 
whether  the  person  erecting  the  nuisance  does  it  ignorantly  or  by 
design,  with  a  good  intent  or  an  evil  intent;  and  there  is  no  rea- 
son why  for  such  an  offence  a  corporation  should  not  be  indicted. 

There  is  a  strong  reason,  which  does  not  seem  to  have  been 
adverted  to  in  the  reported  cases,  why  the  corporation,  and  not 
the  individual  directors  or  laborers,  should  be  indicted  for  the 
creation  of  a  nuisance.  The  principal  object  of  an  indictment 
for  a  nuisance,  is  to  compel  it  to  be  abated;  and  regularly  a  part 
of  the  judgment  upon  conviction  is,  that  the  nuisance  be  abated. 
1  Hawk,  P.  C.,  ch.  75,  Sec.  14;  Queen  v.  The  Inhabitants  of 
Chuworth,  1  Salk.  358,  S.  C.;  6  Mod.  234;  1  Chit.  Crim.  Law 
716;  The  King  v.  Stead,  8  D.  &  E.  142;  Commonwealth  v. 
Wright,  Angel  on  Tidewaters  222. 

A  similar  judgment  was  rendered  in  the  case  of  The  State  v. 
King,  in  the  Passaic  Oyer  and  Terminer,  which  has  since  been 
affirmed  in  the  Court  of  Errors  and  Appeals.  If  the  rights  of 
the  corporation  are  to  be  concluded  by  the  judgment,  as  in  the 
present  case,  a  valuable  building,  erected  by  the  company  at 
great  cost  for  their  own  convenience,  is  to  be  ordered  to  be  torn 
down  as  an  encroachment  upon  the  highway,  there  is  peculiar 
propriety  in  making  the  corporation  itself  a  party,  and  giving  it 
an  opportunity  of  being  heard  in  defence.  To  condemn  the 
property  of  the  corporation  to  destruction  upon  an  indictment 
against  an  irresponsible  individual  who  was  employed  in  the  con- 
struction of  the  work,  but  who  has  no  interest  in  the  company, 
and  who  perhaps  is  hostile  to  its  interests,  savors  strongly  of  the 
injustice  of  condemning  them  unheard.  And  it  is  not  clear  how 
the  sentence  is  to  be  executed  against  the  corporation,  who  are  in 
possession,  and  in  no  sense  parties  to  the  proceeding. 

I  am  of  opinion  that  the  judgment  below  should  be  affirmed. 

NEVIUS,  J.  This  is  an  indictment,  found  by  the  grand  jury  of 
the  county  of  Morris,  against  the  plaintiffs  in  error,  who  are  an 
incorporated  railroad  company,  upon  which  they  were  convicted 
before  the  Court  of  Oyer  and  Terminer  and  General  Jail  De- 
livery of  that  county. 


THE  STATE  V.   THE   MORRIS   AND   ESSEX   R.    R.   CO.  61 

The  indictment  contains  two  counts.  The  first  charges  them 
with  erecting  and  maintaining  a  building  upon  a  certain  public 
highway,  and  thereby  creating  a  nuisance  and  obstruction  to  the 
free  use  of  said  highway.  The  second  charges  them  with  ob- 
structing said  highway  upon  divers  days,  and  for  certain  periods 
of  time  on  each  day,  by  permitting  and  suffering  their  train  of 
cars  to  stand  upon  it,  and  thereby  injuriously  and  unlawfully  im- 
peding and  preventing  the  travel,  &c.,  to  the  great  damage  and 
common  nuisance,  &c. 

It  is  not  denied  in  the  argument,  nor  can  it  be,  that  an  indict- 
ment will  lie  for  the  erection  or  continuance  of  a  nuisance  or  un- 
lawful obstruction,  on  a  public  highway.  All  common  and  pub- 
lic nuisances,  which  aggrieve,  annoy,  or  impair  the  common 
rights  of  the  community,  may  be  punished  criminally  by  indict- 
ment. The  offence  charged  in  this  indictment  is  of  that  char- 
acter, a  public  and  common  nuisance,  and  undeniably  an  indict- 
able offence,  if  committed  by  an  individual.  But  it  is  here  in- 
sisted, that  an  incorporated  company,  as  such,  cannot  be  indicted 
for  any  positive  and  affirmative  act,  which  in  its  nature  must  be 
the  act  of  an  individual,  and  committed  with  force.  The  principle 
being  admitted,  that  the  person  who  erects  a  public  nuisance  may 
be  indicted  for  it,  let  us  inquire  whether  an  artificial  person,  or 
an  incorporated  company,  in  their  corporate  capacity,  can  erect 
or  maintain)  and  continue  a  public  nuisance.  For  if  they  can, 
ex  vi  termini,  they  may  be  indicted.  It  requires  no  great  ingenu- 
ity to  show  that  a  company,  as  such,  may  be  guilty  of  a  public 
nuisance.  A  canal  company,  acting  within  the  scope  of  its 
chartered  rights,  constructs  a  canal  across  a  public  highway  or 
road,  but  neglects  to  erect  a  bridge  for  the  accommodation  of  the 
public  travel;  such  canal  becomes  a  nuisance,  as  well  by  the  act, 
as  by  the  neglect  of  the  company.  So  if  a  railroad  company  erects 
an  embankment  across  a  public  highway,  which  by  law  they  may 
be  authorized  to  do,  or  make  a  deep  excavation  across  such  road, 
without  providing  the  means  for  the  public  to  pass  over  it,  such 
embankment  or  excavation  becomes  a  nuisance,  and  the  company 
criminally  responsible  for  it.  So  in  the  case  before  us,  the  plain- 
tiffs in  error,  having  a  right  to  erect  buildings  for  the  transac- 
tion of  their  business,  by  their  own  act,  or  the  act  of  their  agents 
under  their  direction,  erect  a  building  on  a  public  highway, 


62  NATUBE  AND   ELEMENTS. 

where  by  law  they  have  no  right  to  erect  it,  it  becomes  a  public 
nuisance.  And  there  would  be  little  justice  in  proceeding  against 
the  agent  or  servant  of  the  company,  and  subjecting  him  to  fine 
and  imprisonment,  for  an  act  which  he  may  have  performed  in 
good  faith,  and  suffering  his  employers  not  only  to  escape  punish- 
ment, but  leaving  them  in  the  enjoyment  of  all  the  profits  and 
advantages  of  their  illegal  erection. 

But  it  was  urged  in  the  argument,  that  a  corporation,  as  such, 
cannot  commit  crime;  that  it  cannot  be  guilty  of  a  battery  or 
murder.  Be  it  so;  yet  it  will  not  follow  that  it  may  not  be  guilty 
of  erecting  a  nuisance,  or  continuing  one  already  erected,  which 
it  has  become  their  legal  duty  to  abate.  So  a  single  individual 
.cannot  be  indicted  for  a  riot,  yet  if  he  associates  himself  with 
others  to  commit  one,  all  may  be  indicted. 

In  Angell  &  A.  on  Corporations,  page  396,  in  answer  to  the 
remark,  "That  a  corporation  is  not  indictable,  though  its  mem- 
bers may  be,"  it  is  said,  "that  this  only  applies  to  crimes  and  mis- 
demeanors, but  that  an  indictment  may  lie  against  a  corporation, 
or  county,  or  parish." 

Whatever  may  have  been  the  received  doctrine  of  the  com- 
mon law  in  early  times,  when  corporations  were  fewer  than  now, 
touching  their  criminal  responsibility,  very  many  modern  cases 
are  to  be  found  in  the  books  where  they  have  been  held  liable  to 
indictment.  See  Man.  &  G.  237;  9  A.  &  E.  314;  3  Barb.  42;  20 
Pick.  140;  6  J.  K.  90,  and  very  many  other  cases.  But  if  there 
were  no  precedent  to  be  found,  I  think  this  indictment  good 
upon  every  sound  principle  of  law  and  justice.  Let  the  judgment 
be  affirmed. 

OGDEN,  J.,  concurred. 

Com.  v.  Pulaski  Co.  Ag.  &  Mech.  Ass'n,  92  Ky.  197,  17  S.  W.  442; 
People  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  74  N.  T.  302;  Louisville  &  Nashville 
R.  R.  Co.  v.  State,  3  Head  523;  State  v.  Atchlson,  3  Lea  729;  Stewart  v. 
Waterloo  Turn  Verein,  71  la.  226;  Del.  Canal  Co.  v.  Com.,  60  Pa.  367; 
Com.  v.  Prop'rs  of  New  Bedford  Bridge,  2  Gray  339;  The  Penal  Code  of 
Pa.;  Shields,  vol.  I.,  255,  256,  264,  266,  267,  279,  308,  486,  488,  489,  490, 
570. 

Contra,.— State  v.  Gin.  Fertilizer  Co.,  24  Ohio  St  611;  Clark,  78  et  seq.; 
Bishop  I.,  Sec.  417  et  seq;  Wharton,  Sec.  91  et  seq;  Hawley  &  McGregor, 
p.  24. 


JELLICO   COAL  MIN.   CO.   V.   COMMONWEALTH.  63 

C. 

Ignorance  of  Law. 

Ignorance  of  the  law  is  not  an  excuse  for  criminal  acts ; 
but  when  a  specific  intent  is  required  to  make  the  act  crim- 
inal, it  may  be  a  relevant  fact. 

JELLICO  COAL  MIN.  Co.  v.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky,  1895. 
97  Ky.  246;  29  S.  W.  26. 

GBACE,  J.  This  is  an  appeal  by  the  Jellico  Coal  Mining  Com- 
pany from  a  judgment  of  $100  rendered  against  it  by  the  Whit- 
ley  circuit  court,  upon  an  indictment  filed  in  said  court  on  the 
18th  May,  1893,  charging  that  said  corporation,  though  doing 
business  in  Kentucky,  had  not  on  the  8th  day  of  May,  1893,  nor 
for  some  time  prior  thereto,  filed  a  statement,  by  either  its  presi- 
dent or  secretary,  in  the  office  of  the  secretary  of  state  at  Frank- 
fort, Ky.,  giving  the  location  of  its  principal  office,  and  its  agent 
at  said  place  upon  whom  service  of  process  might  be  made.  The 
chief  ground  relied  upon  by  said  appellant  for  failure  to  file  such 
a  statement  is  that  it  did  not  know  of  the  existence  of  the  law  re- 
quiring same  to  be  so  filed.  The  law  of  the  State  taking  effect 
April  5,  1893,  as  found  in  section  571  of  Kentucky  statutes, 
under  title  "Corporations,"  requires  such  a  statement  to  be  filed. 
The  case  was  submitted  to  the  jury,  upon  an  agreed  state  of  facts, 
whereby  it  was  agreed  "that  this  law  on  corporations  (having 
been  passed  long  enough  to  take  effect  April  5,  1893)  was,  by 
order  of  the  legislature,  printed  about  April  25,  1893,  and  then 
distributed  by  the  secretary  of  state,  as  fast  as  possible,  to  clerks 
of  county  courts,  banks,  lawyers,  and  corporations,  and  that  no 
copy  was  sent  to  appellant;  and,  further,  that  in  fact  said  cor- 
poration, its  agents  and  employes,  were  in  fact  ignorant  of  the 
existenceof  such  statute  until  the  24th  day  of  May,  1893,  when  they 
were  informed  of  same  by  their  attorney,  R.  D.  Hill,  and  that 
thereupon  said  defendant  immediately,  on  the  29th  day  of  May, 
1893,  filed  in  the  office  of  secretary  of  state,  at  Frankfort,  the 
necessary  statement;  that  defendant  was  at  and  before  the  pas- 


64  NATURE   AND   ELEMENTS. 

sage  of  said  law  a  corporation  created  by  the  laws  of  Kentucky, 
doing  business  in  Whitley  county,  Ky.,  where  it  had  an  office, 
and  an  agent  upon  whom  process  could  have  been  served.  It  was 
further  agreed  by  the  parties  that  a  synopsis  of  this  corporation 
law  was  published  by  some  of  the  daily  papers  in  Louisville  about 
the  6th  or  7th  of  April,  1893,  and  that  said  papers  circulated  in 
Whitley  county,  but  was  not  called  to  the  attention  of  the  de- 
fendant." Upon  this  agreed  statement  of  fact,  the  court  in- 
structed the  jury  to  find  for  the  commonwealth.  The  usual  ex- 
ceptions were  taken,  and  the  case  brought  up. 

The  counsel  for  appellant,  while  conceding  the  general  doc- 
trine "that  every  person  is  presumed  to  know  the  law,"  yet  in- 
sists that  this  is  not  an  absolute  conclusive  presumption,  but  only 
one  that  may  be  rebutted  by  evidence,  and,  surely,  that  the  com- 
monwealth may  agree  absolutely  and  unconditionally,  as  she  did 
in  this  case,  that  appellant  was  ignorant  of  the  law,  and  thus 
agree  herself  out  of  court.  We  cannot  view  the  matter  in  this 
light.  The  maxim,  slightly  changed,  and  as  applicable  to  all 
criminal  prosecutions,  being  that  "ignorance  of  the  law  excuses 
no  one,"  is  one  of  the  oldest  and  most  valuable  maxims  of  crimi- 
nal procedure.  It  lies  at  the  very  basis  of  all  successful  criminal 
prosecutions.  It  is  not  so  much  a  presumption  of  fact  as  a  fact, 
as  it  is  a  conclusion  or  presumption  of  the  law,  indispensably 
necessary  to  be  made  by  the  courts  alike  applicable  to  all  criminal 
prosecutions.  Without  it  the  court  would  be  powerless  to  main- 
tain any  effective  and  valuable  administration  of  the  criminal 
code.  In  point  of  antiquity,  it  dates  back  to  a  time  whereof  the 
memory  of  man  runneth  not  to  the  contrary;  and  while  it  may 
be  possible  that  now  and  then,  in  isolated  cases,  there  may  be  ap- 
parent hardships,  yet  we  are  unable  to  conceive  or  formulate  any 
modification  of  the  rule,  whereby  appellant  in  this  case  can  be 
released  from  the  operation  of  the  general  principle,  without  ut- 
terly destroying  same,  and  such  a  ruling  is  not  to  be  thought  of. 

Let  the  judgment  of  the  lower  court  be  affirmed. 

• 

U.  S.  v.  Anthony,  11  Blatch  200;  People  v.  Kilvington,  36  Pac.  13;  U. 
S.  Reynold,  98  U.  S.  145;  Cutter  v.  State,  36  N.  J.  L.  125;  State  v.  Good- 
now,  65  Me.  30;  Com.  v.  Stebbins,  8  Gray  492;  State  v.  Kluseman,  53 
Minn.  541;  Clark,  p.  66;  Bishop  I.,  Sec.  294;  Wharton,  Sec.  84;  Hawley 
&  McGregor,  p.  26. 


THE  STATE  V.   O'BRIEN.  65 

d. 

Negligence. 

Carelessness  and  negligence  may  supply  the  want  of  a 
direct  criminal  intent.  One  doing  what  the  law  forbids  is 
guilty  of  a  wrong  founded  in  malice.  One  who  fails  to  do 
what  it  commands  is  guilty  of  a  wrong  founded  in  neglect. 

Negligence  to  be  criminal  must  be  culpable ;  of  a  nature 
"  gross,  wanton  or  wicked." 

THE  STATE  v.  O'BBIEN. 

Supreme  Court  of  New  Jersey,  1867. 
3  Vroom.  169  (32  N.  J.  L.) ' 

INDICTMENT  for  manslaughter  and  case  certified. 

DALRIMPLE,  J.  On  the  15th  day  of  November,  1865,  the  de- 
fendant was  a  switch-tender,  in  the  employ  of  the  New  Jersey 
Railroad  and  Transportation  Company.  His  duty  was,  to  adjust, 
and  keep  adjusted,  the  switches  of  the  road  at  a  certain  point  in 
the  city  of  Newark,  so  that  passenger  trains  running  over  the  road 
would  continue  on  the  main  track  thereof,  and  pass  thence  to  the 
city  of  Elizabeth.  He  failed  to  perform  such  duty,  whereby  a 
passenger  train  of  cars,  drawn  by  a  locomotive  engine,  was  un- 
avoidably diverted  from  the  main  track  to  a  side  track,  and 
thence  thrown  upon  the  ground.  The  cars  were  thrown  upon  each 
other  with  great  force  and  violence,  by  means  whereof  one  Henry 
Gardner,  a  passenger  upon  the  train,  was  so  injured  that  he  died. 
The  defendant  was  indicted  for  manslaughter,  and  convicted  upon 
trial  in  the  Essex  Oyer  and  Terminer.  He  insisted,  and  in  dif- 
ferent forms,  asked  the  court  to  charge  the  jury,  that  he  could 
not  legally  be  convicted,  unless  his  will  concurred  in  his  omission 
of  duty;  the  court  refused  so  to  charge.  A  rule  to  show  cause 
why  the  verdict  should  not  be  set  aside  was  granted,  and  the  case 
certified  into  this  court  for  its  advisory  opinion,  as  to  whether 
there  was  any  error  in  the  charge  of  the  court  below,  or  in  the 
refusal  to  charge,  as  requested. 


66  NATURE  AND    ELEMENTS. 

The  indictment  was  for  the  crime  of  manslaughter.  If  the  de- 
fendant's omission  of  duty  was  wilful,  or  in  other  words,  if  his 
will  concurred  in  his  negligence,  he  was  guilty  of  murder.  In- 
tent to  take  life,  whether  by  an  act  of  omission  or  commission, 
distinguishes  murder  from  manslaughter.  In  order  to  make  out 
against  the  defendant  the  lesser  offence  of  manslaughter,  it  was 
not  necessary  that  it  should  appear  that  the  act  of  omission  was 
wilful  or  of  purpose.  The  court  was  right  in  its  refusal  to  charge, 
as  requested. 

The  only  other  question  is,  whether  there  is  error  in  the  charge 
delivered.  The  error  complained  of  is,  that  the  jury  were  in- 
structed that  a  mere  act  of  omission  might  be  so  criminal  or  culp- 
able as  to  be  the  subject  of  an  indictment  for  manslaughter. 
Such,  we  believe,  is  the  prevailing  current  of  authority.  Pro- 
fessor Greenleaf,  in  the  third  volume  of  his  work  on  evidence, 
Sec.  129,  in  treating  of  homicide,  says:  "It  may  be  laid  down, 
that  where  one,  by  his  negligence,  has  contributed  to  the  death 
of  another,  he  is  responsible.  The  caution  which  the  law  requires 
in  all  these  cases,  is  not  the  utmost  degree  which  can  possibly  be 
used,  but  such  reasonable  care  as  is  used  in  the  like  cases,  and 
has  been  found,  by  long  experience,  to  answer  the  end."  Whar- 
ton,  in  his  Treatise  on  Criminal  Law,  p.  382,  says:  "There  are 
many  cases  in  which  death  is  the  result  of  an  occurrence,  in  itself 
unexpected,  but  which  arose  from  negligence  or  inattention.  How 
far  in  such  cases  the  agent  of  such  misfortune  is  to  be  held  re- 
sponsible, depends  upon  the  inquiry,  whether  he  was  guilty  of 
gross  negligence  at  the  time.  Inferences  of  guilt  are  not  to  be 
drawn  from  remote  causes,  and  the  degree  of  caution  requisite 
to  bring  the  case  within  the  limits  of  misadventure,  must  be  pro- 
portioned to  the  probability  of  danger  attending  the  act  imme- 
diately conducive  to  the  death."  The  propositions  so  well  stated 
by  the  eminent  writers  referred  to,  we  believe  to  be  entirely 
sound,  and  are  applicable  to  the  case  before  us.  The  charge  in 
the  respect  complained  of,  was  in  accordance  with  them.  It  ex- 
pressly states,  that  it  was  a  question  of  fact  for  the  jury  to  settle, 
whether  the  defendant  was,  or  was  not  guilty  of  negligence; 
whether  his  conduct  evinced  under  the  circumstances  such  care 
and  diligence  as  were  proportionate  to  the  danger  to  life  impend- 
ing. The  very  definition  of  crime  is  an  act  omitted  or  committed 


ARP  V.   THE   STATE.  67 

in  violation  of  public  law.  The  defendant  in  this  case  omitted 
his  duty  under  such  circumstances,  as  amounted  to  gross  or  culp- 
able or  criminal  negligence.  The  court  charged  the  jury,  that  if 
the  defendant,  at  the  time  of  the  accident  was  intending  to  do  his 
duty,  but  in  a  moment  of  f orgetf ulness  omitted  something  which 
any  one  of  reasonable  care  would  be  likely  to  omit,  he  was  not 
guilty.  The  verdict  of  guilty  finds  the  question,  in  fact,  involved 
in  this  proposition  against  the  defendant,  and  convicts  him  of 
gross  negligence.  He  owed  a  personal  duty  not  only  to  his  em- 
ployers, but  to  the  public.  He  was  found  to  have  been  grossly 
negligent  in  the  performance  of  that  duty,  whereby  human  life 
was  sacrificed.  His  conviction  was  right,  and  the  court  below 
should  be  so  advised. 

State  fl.  Smith,  65  Me.  257;  Reg.  v.  Wagstaffe,  10  Cox  C.  C.  530;  State 
v.  Hardister,  38  Ark.  605;  Regina  v.  Nicholls,  13  Cox  C.  C.  75;  State  v. 
Hawkins,  77  N.  C.  494;  Com.  v.  Metro.  R.  R.,  107  Mass.  236;  State  v. 
Preslar,  3  Jones  421;  U.  S.  v.  Warner,  4  McLean  463;  Sparks  v.  Com.,  3 
Bush.  Ill;  Collier  v.  Georgia,  39  Ga.  31;  Robertson  v.  State,  2  Lea  239; 
Clark,  p.  48;  Bishop  I.,  Sees.  313-332;  Wharton,  Sec.  125  et  seq.;  Hawley 
&  McGregor,  p.  449;  The  Penal  Code  of  Pa.;  Shields,  vol.  I.,  189,  199, 
215;  Minn.  Stat.  1894,  Sees.  6449,  6451  et  seq. 


e. 
Coercion  or  Duress. 

The  law  recognizes  only  such  fear  as  an  excuse  for  crim- 
inal acts  as  proceeds  from  an  immediate  and  actual  danger 
threatening  the  very  life  of  the  party,  and  from  which  there 
is  no  escape. 

ARP  v.  THE  STATE. 

Supreme  Court  of  Alabama,  1893. 
97  Ala.  5;  12  So.  Rep.  301. 

COLEMAN,  J.  At  the  July  Term,  1892,  of  the  Circuit  Court, 
the  defendant  was  convicted  of  murder  in  the  first  degree,  and 
sentenced  to  suffer  death. 

The  defendant  moved  to  quash  the  venire  summoned :   1st.  Be- 


68  NATURE   AND    ELEMENTS. 

cause  some  of  the  jurors  summoned  on  the  special  venire  had 
served  as  regular  jurors  during  the  preceding  week.  2d.  Because 
Wm.  Jackson,  who  was  summoned  as  a  regular  juror  for  the 
week,  had  not  been  a  resident  of  the  State  or  county  lor  the  pre- 
ceding twelve  months.  3d.  Because  one  C.  H.  McCullough, 
whose  name  appears  on  the  venire,  served  as  a  regular  juror  at  the 
January  Term,  1892.  These  several  motions  were  properly  over- 
ruled.—Criminal  Code,  Sec.  4301;  Fields  v.  State,  52  Ala.  351; 
Gibson  v.  State,  89  Ala.  126. 

The  objections  to  the  empaneling  of  the  jury  were  as  fol- 
lows: 1st.  That  one  of  the  jurors  drawn  failed  to  answer,  it  ap- 
pearing that  said  juror  was  at  that  time  serving  as  a  juror  on  an- 
other case,  and  was  out  considering  that  case.  The  second  objec- 
tion is  the  same  as  the  first.  3d.  That  one  of  the  jurors  drawn 
had  not  been  a  resident  of  the  State  or  county  for  the  past  pre- 
ceding twelve  months,  and  was  excused  for  cause.  4th.  That  one 
of  the  persons  whose  name  was  drawn,  who  had  been  summoned 
to  serve  as  a  juror,  failed  to  answer  when  called.  5th.  That  one 
of  the  persons  summoned  as  a  juror  was  over  the  age  of  seventy, 
who  was  challenged  by  the  State  for  cause.  6th.  That  one  of 
the  persons  summoned,  on  his  examination  as  to  his  competency, 
stated  that  he  had  heard  a  part  of  the  evidence  at  a  preliminary 
examination  of  the  defendant,  and  from  that  evidence  had  formed 
an  opinion  as  to  the  guilt  or  innocence  of  the  defendant,  but  that 
in  his  judgment  said  opinion  would  not  bias  his  verdict.  Upon 
this  statement  the  court  pronounced  the  person  competent  to 
serve  as  a  juror.  Each  of  these  objections  have  been  adjudicated 
by  this  court,  and  declared  to  be  without  merit.  See  the  follow- 
ing authorities:  On  the  first  and  second  propositions,  Johnson  v. 
State,  94  Ala.  40,  and  authorities  cited;  on  the  third  proposition, 
Field's  Case,  52  Ala.  supra,  and  Gibson's  Case,  89  Ala.  supra; 
on  the  4th,  Johnson  v.  State,  supra;  on  the  5th,  Criminal  Code, 
Sec.  4331,  sub-div.  8;  on  the  6th,  Hammill  v.  State,  90  Ala.  577. 
Neither  of  the  objections  come  within  the  principle  decided  in 
the  case  of  McQueen  v.  State,  94  Ala.  52,  or  of  Darby  v.  State, 
92  Ala.  9. 

The  confessions  of  the  defendant  were  voluntarily  made  and 
were  properly  admitted.  Moreover,  the  defendant  himself,  who 
testified  in  his  own  behalf,  did  not  deny  they  were  voluntarily 


ARP   V.   THE    STATE.  69 

made,  but  himself  testified  substantially  as  true  the  main  fact 
given  in  evidence  as  confessions.  The  testimony  of  the  defend- 
ant and  the  evidence  admitted  as  confessions,  showed  that  he  took 
the  life  of  the  deceased,  without  provocation  on  the  part  of 
the  deceased,  and  when  there  was  no  real  or  apparent  necessity 
for  the  act  so  far  as  such  necessity  proceeded  from  the  deceased. 
According  to  his  own  statement,  the  object  to  be  accomplished 
by  taking  the  life  of  the  deceased  was  to  prevent  deceased 
from  appearing  as  a  witness  against  him,  and  one  Burkhalter 
and  Leith,  charged  with  retailing  whiskey  without  license. 
The  defendant's  excuse  for  the  homicide  was  that  Burk- 
halter and  Leith  threatened  to  take  his  life  unless  he  killed  de- 
ceased; that  they  were  present,  armed  with  double-barrelled 
shot  guns,  and  threatened  to  kill  him  unless  he  killed  deceased, 
and  that  it  was  through  fear  and  to  save  his  own  life  he  struck 
deceased  with  an  axe.  He  admits  that  after  having  struck  de- 
ceased down  he  rifled  the  pockets  and  took  what  money  was 
found  in  the  pockets  of  the  deceased. 

On  this  phase  of  the  evidence  the  court  was  asked  to  give  the 
following  charge:  "If  the  jury  believe  from  the  evidence  that 
the  defendant  killed  Pogue  under  duress,  under  compulsion  from 
a  necessity,  under  threats  of  immediate  impending  peril  to  his 
own  life,  such  as  to  take  away  the  free  agency  of  the  defendant, 
then  he  is  not  guilty."  The  court  refused  this  charge,  and  the 
refusal  is  assigned  as  error.  This  brings  up  for  consideration  the 
question,  what  is  the  law  when  one  person,  under  compulsion  or 
fear  of  great  bodily  harm  to  himself,  takes  the  life  of  an  innocent 
person;  and  what  is  his  duty  when  placed  under  such  circum- 
stances? 

The  fact  that  defendant  had  been  in  the  employment  of  Burk- 
halter is  no  excuse.  The  command  of  a  superior  to  an  inferior,  of 
a  parent  to  a  child,  of  a  master  to  a  servant,  or  of  a  principal  to 
his  agent,  will  not  justify  a  criminal  act  done  in  pursuance  of 
such  command. — 1  Bishop,  Sec.  355;  Reese  v.  State,  73  Ala.  18; 
4  Blackstone,  Sec.  27. 

In  a  learned  discussion  of  the  question,  to  be  found  in  Lead- 
ing Criminal  Cases,  Vol.  1,  p.  81  and  note  on  p.  85,  by  Bennett 
&  Heard,  it  is  declared  that  "for  certain  crimes  the  wife  is  re- 
sponsible, although  committed  under  the  compulsion  of  her  hus- 


70  NATURE   AND   ELEMENTS. 

band.  Such  are  murder,"  &c.  To  the  same  effect  is  the  text  in  14 
Am.  &  Eug.  Encyc.  of  Law,  p.  649 ;  and  this  court  gave  sanction 
to  this  rule  in  Bibb  v.  State,  94  Ala.  31;  10  So.  Rep.  506.  In 
Ohio  a  contrary  rule  prevails  in  regard  to  the  wife. — Davis  v. 
State,  15  Ohio,  72;  45  Amer.  Dec.  559.  In  Arkansas  there  is  a 
statute  specially  exempting  married  women  from  liability,  when 
"acting  under  the  threats,  commands  or  coercion  of  their  hus- 
bands," but  it  was  held  under  this  act  there  was  no  presumption 
in  favor  of  the  wife  accused  of  murder,  and  that  it  was  incum- 
bent on  her  to  show  that  the  crime  was  done  under  the  influence 
of  such  coercion,  threats  or  commands." — Edwards  v.  State,  27 
Ark.  493,  reported  in  1  Criminal  Law  by  Green,  p.  741. 

In  the  case  of  Beal  v.  The  State  of  Ga.,  72  Ga.  Rep.  200,  and 
also  in  the  case  of  The  People  v.  Miller,  66  Cal.  468,  the  question 
arose  upon  the  sufficiency  of  the  testimony  of  a  witness  to  author- 
ize a  conviction  for  a  felony,  it  being  contended  that  the  witness 
was  an  accomplice.  In  both  cases  the  witness  was  under  fourteen 
years  of  age.  It  was  held  that  if  the  witness  acted  under  threats 
and  compulsion,  he  was  not  an  accomplice.  The  defendants  were 
convicted  in  both  cases. 

In  the  case  of  Rex  v.  Crutchly,  5  C.  &  P.  133,  the  defendant 
was  indicted  for  breaking  a  threshing  machine.  The  defendant 
was  allowed  to  prove  that  he  was  compelled  by  a  mob  to  go  with 
them  and  compelled  to  hammer  the  threshing  machine,  and  was 
also  permitted  to  prove  that  he  ran  away  at  the  first  opportunity. 

In  Hawkins'  Pleas  of  the  Crown,  Vol.  1,  Ch.  28,  Sec.  26,  it  is 
said:  "The  killing  of  an  innocent  person  in  defence  of  a  man's 
self  is  said  to  be  justifiable  in  some  special  cases,  as  if  two  be 
shipwrecked  together,  and  one  of  them  get  upon  a  plank  to  save 
himself,  and  the  other  also,  having  no  other  means  to  save  his 
life,  get  upon  the  same  plank,  and  finding  it  not  able  to  support 
them  both,  thrusts  the  other  from  it,  whereby  he  is  drowned,  it 
seems  that  he  who  thus  preserved  his  own  life  at  the  expense  of 
that  other,  may  justify  the  fact  by  the  inevitable  necessity  of  the 
case." 

In  1  Hale's  Pleas  of  the  Crown,  Ch.  VIII,  Sec.  50,  it  is  said 
"There  is  to  be  observed  a  difference  between  the  times  of  war, 
or  public  insurrection  or  rebellion,  when  a  person  is  under  so 
great  a  power,  that  he  can  not  resist  or  avoid,  the  law  in  some 


ARP   V.   THE   STATE.  71 

cases  allows  an  impunity  for  parties  compelled,  or  drawn  by  fear 
of  death  to  do  some  acts  in  themselves  capital,  which  admit  no 
excuse  in  time  .of  peace.  *  *  *  Now  as  to  times  of  peace, 
if  a  man  be  menaced  with  death,  unless  he  will  commit  an  act 
of  treason,  murder  or  robbery,  the  fear  of  death  doth  not  excuse 
him,  if  he  commit  the  act;  for  the  law  hath  provided  a  sufficient 
remedy  against  such  fears  by  applying  himself  to  the  court  and 
officers  of  justice  for  a  writ  or  precept  de  securitate  pads. 
Again,  if  a  man  be  desperately  assaulted,  and  in  peril  of  death, 
and  can  not  otherwise  escape,  unless  to  satisfy  his  assailant's  fury 
he  will  kill  an  innocent  person,  the  present  fear  of  actual  force 
will  not  acquit  him  of  the  crime  and  punishment  of  murder,  if 
he  commit  the  act;  for  he  ought  rather  to  die  himself  than  kill 
an  innocent;  but  if  he  can  not  otherwise  save  his  own  life,  the 
law  permits  him  in  his  own  defence  to  kill  his  assailant." 

Blackstone,  Vol.  4,  Sec.  30,  declares  the  law  to  be,  "Though  a 
man  be  violently  assaulted,  and  has  not  other  possible  means  of 
escaping  death,  but  by  killing  an  innocent  person;  this  fear  and 
force  shall  not  acquit  him  of  murder;  for  he  ought  rather  to  die 
himself,  than  escape  by  the  murder  of  an  innocent." 

In  Stephen's  Commentaries,  Vol.  4,  Book  6,  Ch.  2,  pp.  83-4, 
the  same  rule  is  declared  to  be  the  law. 

In  East's  Crown  Law,  the  same  general  principles  are  declared 
as  to  cases  of  treason  and  rebellion,  &c.  But  on  page  294,  after 
referring  to  the  case  of  two  persons  being  shipwrecked  and  get- 
ting on  the  same  plank,  proceeds  as  follows:  "Yet,  according  to 
Lord  Hale,  a  man  can  not  even  excuse  the  killing  of  another  who 
is  innocent,  under  a  threat,  however  urgent,  of  losing  his  own 
life  unless  he  comply.  But  if  the  commission  of  treason  may  be 
extenuated  by  the  fear  of  present  death,  and  while  the  party  is 
under  actual  compulsion,  there  seems  no  reason  why  this  offence 
may  not  be  mitigated  upon  the  like  consideration  of  human  in- 
firmity. But  if  the  party  might,  as  Lord  Hale,  in  one  place,  sup- 
poses, have  recourse  to  the  law  for  his  protection  against  such 
threats,  it  will  certainly  be  no  excuse  for  committing  murder." 

In  Russell  on  Crimes,  Vol.  1,  Sec.  699,  it  is  stated  as  follows: 
"The  person  committing  the  crime  must  be  a  free  agent,  and  not 
subject  to  actual  force  at  the  time  the  act  is  done;  thus,  if  A  by 
force  take  the  arm  of  B,  in  which  is  a  weapon  and  therewith  kill 


72 


NATURE   AND   ELEMENTS. 


C,  A  is  guilty  of  murder,  but  not  B.  But  if  it  be  only  a  moral 
force  put  upon  B,  as  by  threatening  him  with  duress  or  imprison- 
ment or  even  by  an  assault  to  the  peril  of  his  life  in  order  to 
compel  him  to  kill  C,  it  is  no  legal  excuse." 

In  the  case  of  Regina  v.  Tyler,  reported  in  8  Car.  &  Payne 
618,  Lord  Denham,  C.  J.  declares  the  law  as  follows:  "With  re- 
gard to  the  argument,  you  have  heard,  that  these  prisoners  were 
induced  to  join  Thorn,  and  to  continue  with  him  from  a  fear  of 
personal  violence  to  themselves,  I  am  bound  to  tell  you,  that 
where  parties,  for  such  reason,  are  induced  to  join  a  mischievous 
man,  it  is  not  their  fear  of  violence  to  themselves  which  can  ex- 
cuse their  conduct  to  others.  *  *  *  The  law  is  that  no  man, 
from  a  fear  of  consequences  to  himself,  has  a  right  to  make  him- 
self a  party  committing  mischief  on  mankind." 

In  the  case  of  Respublicae  v.  McCarty,  2  Dallas  86,  when  the 
defendant  was  on  trial  for  high  treason,  the  court  uses  this  lan- 
guage :  "It  must  be  remembered  that,  in  the  eye  of  the  law,  noth- 
ing will  excuse  the  act  of  joining  the  enemy  but  the  fear  of  im- 
mediate death;  not  the  fear  of  any  inferior  personal  injury,  nor 
the  apprehension  of  any  outrage  on  property." 

The  same  rule  in  regard  to  persons  charged  with  treason  as 
that  stated  in  Hale's  Pleas  of  the  Crown  is  declared  in  Hawkins, 
Vol.  1,  Ch.  17,  Sec.  28  and  note,  and  both  authors  hold,  that 
"the  question  of  the  practicability  of  escape  is  to  be  considered, 
and  that  if  the  person  thus  acting  under  compulsion  continued 
in  the  treasonable  acts  longer  than  was  necessary,  the  defence 
'pro  timore  mortis'  will  not  be  available." 

This  principle  finds  further  support  in  the  case  of  U.  S.  v. 
Greiner,  tried  for  treason,  reported  in  4  Phil.  396,  in  the  follow- 
ing language:  "The  only  force  which  excuses  on  the  grounds  of 
compulsion  is  force  upon  the  person  and  present  fear  of  death, 
which  force  and  fear  must  continue  during  all  the  time  of  mili- 
tary service,  and  that  it  is  incumbent  in  such  a  case  upon  him 
who  makes  force  his  defence  to  show  an  actual  force,  and  that  he 
quitted  the  service  as  soon  as  he  could." 

Wharton's  Criminal  Law,  Vol.  1,  Sec.  94,  under  the  head  of 
Persons  under  Compulsion,  says  "Compulsion  may  be  viewed  in 
two  aspects:  1.  When  the  immediate  agent  is  physically  forced 
to  do  the  injury,  as  when  his  hand  is  seized  by  a  person  of 


ABP  V.  THE    STATE.  73 

superior  strength,  and  is  used  against  his  will  to  strike  a  blow,  in 
which  case  no  guilt  attaches  to  the  person  so  coerced.  2.  When 
the  force  applied  is  that  of  authority  or  fear.  Thus,  when  a  per- 
son not  intending  wrong,  is  swept  along  by  a  party  of  persons 
whom  he  cannot  resist,  he  is  not  responsible,  if  he  is  compelled 
to  do  wrong  by  threats  on  the  part  of  the  offenders  instantly  to 
kill  him,  or  to  do  him  grievous  bodily  harm,  if  he  refuses;  but 
threats  of  future  injury,  or  the  command  of  any  one  not  the  hus- 
band of  the  offender,  do  not  excuse  any  offence.  Thus,  it  is  a 
defence  to  an  indictment  for  treason,  that  the  defendant  was 
acting  in  obedience  to  a  de  facto  government,  or  to  such  concur- 
ring and  overbearing  sense  of  the  community  in  which  he  re- 
sided as  to  imperil  his  life  in  case  of  dissent."  In  section  1803a 
of  the  same  author  (Wharton),  it  is- said:  "No  matter  what  may 
be  the  shape  compulsion  takes,  if  it  affects  the  person  and  he 
yielded  to  it  bona  fide,  it  is  a  legitimate  defence." 

We  have  examined  the  cases  cited  by  Mr.  Wharton  to  sustain 
the  text,  and  find  them  to  be  cases  of  treason,  or  fear  from  the 
party  slain,  and  in  none  of  them  is  there  a  rule  different  from 
that  declared  in  the  common  law  authorities  cited  by  us. 

Bishop  on  Criminal  Law,  Sees.  346,  347,  348,  treats  of  the 
rules  of  law  applicable  to  acts  done  under  necessity  and  com- 
pulsion. It  is  here  declared:  "That  always  an  act  done  from 
compulsion  and  necessity  is  not  a  crime.  To  this  proposition  the 
law  knows  no  exception.  Whatever  it  is  necessary  for  a  man  to 
do  to  save  his  life,  is,  in  general,  to  be  considered  as  compelled." 

The  cases  cited  to  these  propositions  show  the  facts  to  be 
different  from  those  under  consideration.  The  case  referred  in  I 
Plow.  19,  was  where  the  defendant  had  thrown  overboard  a  part 
of  his  cargo  of  green  wood,  during  a  severe  tempest,  to  save  his 
vessel  and  the  remainder  of  his  cargo.  The  other  5  Q.  B.  279, 
was  for  the  failure  to  keep  up  a  highway,  which  the  encroach- 
ments of  the  sea  had  made  impossible;  and  that  of  Tate  v.  The 
State,  Black.  73,  was  also  that  of  a  supervisor  of  the  public  high- 
way, and  the  others  were  cases  of  treason,  to  which  reference  has 
been  made.  In  section  348,  the  author  cites  the  rule  laid  down 
by  Russell,  and  also  of  Lord  Denman,  and  in  1  East  P.  C.,  to 
which  reference  has  already  been  made.  In  section  845,  the 
same  author  uses  the  following  language :  "The  cases  in  which  a 


74  NATURE   AND   ELEMENTS. 

man  is  clearly  justified  in  taking  another's  life  to  save  his  own 
are  when  the  other  has  voluntarily  placed  himself  in  the  wrong. 
And  probably,  as  we  have  seen,  it  is  never  the  right  of  one  to 
deprive  an  innocent  third  person  of  life  for  the  preservation  of 
his  own.  There  are,  it  would  seem,  circumstances  in  which  one 
is  bound  even  to  die  for  another."  Italics  are  ours — emphasized 
to  call  attention  to  the  fact,  that  the  author  is  careful  to  content 
himself  more  with  a  reference  to  the  authorities,  which  declare 
these  principles  of  law  than  an  adoption  of  them  as  his  own. 

The  authorities  seem  to  be  conclusive  that,  at  common  law,  no 
man  can  excuse  himself,  under  the  plea  of  necessity  or  com- 
pulsion for  taking  the  life  of  an  innocent  person. 

Our  statute  has  divided  murder  into  two  degrees,  and  affixed 
the  punishment  for  each  degree,  but  in  no  respect  has  added  to  or 
taken  away  any  of  the  ingredients  of  murder  as  known  at  com- 
mon law.— Mitchell  v.  State,  60  Ala.  26;  Fields  v.  State,  52  Ala. 
352. 

That  persons  have  exposed  themselves  to  imminent  peril  and 
death  for  their  fellow  man,  and  that  there  are  instances,  where 
innocent  persons  have  submitted  to  murderous  assaults  and  death 
rather  than  take  life  is  well  established,  but  such  self  sacrifices 
emanated  from  other  motives  than  the  fear  of  legal  punishment. 
That  the  fear  of  punishment  by  imprisonment  or  death  at  some 
future  day  by  due  process  of  law  can  operate  with  greater  force 
to  restrain  or  deter  from  its  violation,  than  the  fear  of  immediate 
death,  unlawfully  inflicted,  is  hardly  reconcilable  with  our 
knowledge  and  experience  with  that  class  of  mankind,  who  are 
controlled  by  no  other  higher  principle  than  fear  of  the  law.  Be 
this  as  it  may,  there  are  other  principles  of  law  undoubtedly  ap- 
plicable to  the  facts  of  this  case,  and  which  we  think  can  not  be 
ignored. 

The  evidence  of  the  defendant  himself  shows  that  he  went  to 
Burkhalter's  house  about  nine  o'clock  of  the  night  of  the  killing, 
and  there  met  Burkhalter  and  Leith,  and  that  it  was  there,  and 
at  that  time,  they  told  him  he  must  kill  Pogue.  The  evidence 
is  not  clear  as  to  how  far  it  was  from  Burkhalter's  to  Pogue's 
dwelling,  where  the  crime  was  perpetrated;  but  it  was  sufficient 
to  show  that  there  was  some  considerable  distance  between  the 
places,  and  he  testifies  as  they  went  to  Pogue's,  they  went  by  the 


AJRP  V.   THE  STATE.  75 

mill  and  got  the  axe,  with  which  he  killed  him.  Under  every 
principle  of  law,  it  was  the  duty  of  the  defendant  to  have  escaped 
from  Burkhalter  and  Leith,  after  being  informed  of  their  inten- 
tion to  compel  him  to  take  the  life  of  Pogue,  as  much  so  as  it  is 
the  duty  of  one  who  had  been  compelled  to  take  up  arms  against 
his  own  government,  if  he  can  do  so  with  reasonable  safety,  to 
himself;  or  of  one  assailed  to  retreat,  before  taking  the  life  of  his 
assailant.  Although  it  may  have  been  true,  that  at  the  time  he 
struck  the  fatal  blow,  that  he  had  reason  to  believe  he  would  be 
killed  by  Burkhalter  and  Leith,  unless  he  killed  Pogue,  yet,  if  he 
had  the  opportunity,  if  it  was  practicable,  after  being  informed 
at  Burkhalter's  house  of  their  intention,  he  could  have  made  his 
escape  from  them,  with  reasonable  safety,  and  he  failed  to  do 
so,  but  remained  with  them  until  the  time  of  the  killing,  the  im- 
mediate necessity  or  compulsion  under  which  he  acted  at  that 
time  would  be  no  excuse  to  him.  As  to  whether  escape  was 
practicable  to  defendant,  as  we  have  stated,  was  a  question  of 
fact  for  the  jury.  The  charge,  numbered  1  and  refused  by  the 
court,  ignored  this  principle  of  law  and  phase  of  evidence,  and 
demanded  an  acquittal  of  defendant,  if  at  the  time  of  the  killing 
the  compulsion  and  coercion  operated  upon  the  defendant,  and 
forced  him  to  the  commission  of  the  act  notwithstanding  he 
might  have  avoided  the  necessity  by  escape  before  that  time.  We 
do  not  hesitate  to  say  he  would  have  been  justifiable  in  taking  the 
life  of  Burkhalter  and  Leith,  if  there  had  been  no  other  way  open 
to  enable  him  to  avoid  the  necessity  of  taking  the  life  of  an 
innocent  man.  The  charge  requested  was  erroneous  and  mislead- 
ing, in  the  respect  that  it  ignored  the  law  and  evidence  in  these 
respects. 

The  second  charge  requested  was  properly  refused.  We  sup- 
pose the  principle  asserted  is  exactly  the  contrary  of  that  in- 
tended. By  the  use  and  position  of  the  negatives  the  charge  is 
made  to  assert  that  unless  there  was  a  present  impending  necessity 
to  strike,  there  could  be  no  murder. 

There  is  no  error  in  the  record. 

It  appearing  that  the  day  appointed  for  the  execution  of  the 
sentence  has  passed,  it  is  considered  and  ordered  that  Friday, 
the  10th  day  of  March  next  (1893),  be  and  is  hereby  appointed 
and  specified  for  the  execution  of  the  sentence  of  the  law  pro- 


76  NATURE  AND   ELEMENTS. 

nouuced  by  the  trial  court,  and  the  sheriff  or  his  deputy,  or  the 
officer  acting  in  his  place,  must  execute  the  sentence. 
Affirmed. 

Arp  r.  State,  19  L.  R.  A.  357  and  note;  Sanders  v.  State,  26  8.  W.  62; 
U.  S.  v.  Vigol,  2  Dall  345;  U.  S.  v.  Haskel,  4  Wash.  C.  C.  402;  Com.  v. 
Hadley,  52  Mass.  66;  Com.  v.  Drew,  57  Mass.  279;  People  v.  Richmond, 
29  Cal.  414;  Bain  v.  State,  67  Miss.  557;  McCoy  v.  State,  78  Ga.  490; 
Clark,  p.  73;  Bishop  I.,  Sec.  346;  Wharton,  Sec.  94. 

NOTE.— In  Minnesota  by  statute,  if  the  crime  is  not  murder  and  the  act  is 
done  under  the  reasonable  apprehension  of  an  instantaneous  death,  it 
is  a  defence.  Minn.  Stat.  1894,  Sec.  6307;  see  N.  Y.  Penal  Code,  Sec.  25. 

NOTE.— At  common  law  married  women  committing  crimes  other  than 
treason  or  murder  in  the  presence  of  their  husbands,  were  presumed  to 
be  coerced,  which  presumption  was  in  many  cases  held  to  be  conclus- 
ive. The  modern  doctrine  is  that  this  presumption  may  be  rebutted;  and 
some  States,  notably  New  York  and  Minnesota,  declare  by  statute  that 
it  is  no  defense  for  married  women  that  their  criminal  acts  were  done 
in  the  presence  of  their  husbands.  Minn.  Stat.  1894,  Sec.  6306;  N.  Y. 
Penal  Code,  Sec.  24. 

Bishop  I.,  Sec.  356;  Wharton,  Sec.  94  a.  78;  Hawley  &  McGregor,  p.  2. 

State  v.  Fitzgerald,  49  la.  260;  Bibb  v.  State,  94  Ala.  31;  Com.  v.  Neal, 
10  Mass.  152;  Seller  v.  People,  77  N.  Y.  411;  Reg.  v.  Smith,  8  Cox  O.  C. 
27;  People  v.  Wright,  38  Mich.  744;  Reg.  v.  Dyker,  15  Cox  C.  C.  771. 


f. 
Necessity. 

An  overwhelming  necessity,  destroying  the  free  agency 
of  the  actor,  relieves  the  act  of  its  criminality ;  but  one  in 
order  to  save  his  own  life  can  never  take  the  life  of  another 
who  is  not  doing  an  unlawful  act. 

REGINA  v.  DUDLEY. 

Queen's  Bench  Division,  1884. 
14  Q.  B.  D.  273. 

INDICTMENT  for  the  murder  of  Richard  Parker  on  the  high  seas 
within  the  jurisdiction  of  the  Admiralty. 

At  the  trial  before  Huddleston,  B.,  at  the  Devon  and  Cornwall 


EEGINA   V.   DUDLEY.  77 

Winter  Assizes,  November  7,  1884,  the  jury,  at  the  suggestion 
of  the  learned  judge,  found  the  facts  of  the  case  in  a  special  ver- 
dict which  stated  "that  on  July  5,  1884,  the  prisoners,  Thomas 
Dudley  and  Edward  Stephens,  with  one  Brooks,  all  able-bodied 
English  seamen,  and  the  deceased  also  an  English  boy,  between 
seventeen  and  eighteen  years  of  age,  the  crew  of  an  English 
yacht,  a  registered  English  vessel,  were  cast  away  in  a  storm  on 
the  high  seas  1600  miles  from  the  Cape  of  Good  Hope,  and  were 
compelled  to  put  into  an  open  boat  belonging  to  the  said  yacht. 
That  in  this  boat  they  had  no  supply  of  water  and  no  supply  of 
food,  except  two  1  Ib.  tins  of  turnips,  and  for  three  days  they  had 
nothing  else  to  subsist  upon.  That  on  the  fourth  day  they  caught  a 
small  turtle,  upon  which  they  subsisted  for  a  few  days,  and  this 
was  the  only  food  they  had  up  to  the  twentieth  day  when  the  act 
now  in  question  was  committed.  That  on  the  twelfth  day  the 
remains  of  the  turtle  were  entirely  consumed,  and  for  the  next 
eight  days  they  had  nothing  to  eat.  That  they  had  no  fresh 
water,  except  such  rain  as  they  from  time  to  time  caught  in  their 
.  oilskin  capes.  That  the  boat  was  drifting  on  the  ocean,  and  was 
probably  more  than  1000  miles  away  from  land.  That  on  the 
eighteenth  day,  when  they  had  been  seven  days  without  food 
and  five  without  water,  the  prisoners  spoke  to  Brooks  as  to  what 
should  be  done  if  no  succour  came,  and  suggested  that  some  one 
should  be  sacrificed  to  save  the  rest,  but  Brooks  dissented,  and 
the  boy,  to  whom  they  were  understood  to  refer,  was  not  con- 
sulted. That  on  the  24th  of  July,  the  day  before  the  act  now  in 
question,  the  prisoner,  Dudley,  proposed  to  Stephens  and  Brooks 
that  lots  should  be  cast  who  should  be  put  to  death  to  save  the 
rest,  but  Brooks  refused  to  consent,  and  it  was  not  put  to  the 
boy,  and  in  point  of  fact  there  was  no  drawing  of  lots.  That  on 
that  day  the  prisoners  spoke  of  their  having  families,  and  sug- 
gested it  would  be  better  to  kill  the  boy  that  their  lives  should 
be  saved,  and  Dudley  proposed  that  if  there  was  no  vessel  in 
sight  by  the  morrow  morning  the  boy  should  be  killed.  That 
next  day,  the  25th  of  July,  no  vessel  appearing,  Dudley  told 
Brooks  that  he  had  better  go  and  have  a  sleep,  and  made  signs  to 
Stephens  and  Brooks  that  the  boy  had  better  be  killed.  The 
prisoner,  Stephens,  agreed  to  the  act,  but  Brooks  dissented  from 
it.  That  the  boy  was  then  lying  at  the  bottom  of  the  boat  quite 


78  NATURE   AND   ELEMENTS. 

helpless,  and  extremely  weakened  by  famine  and  by  drinking  sea 
water,  and  unable  to  make  any  resistance,  nor  did  he  ever  assent 
to  his  being  killed.  The  prisoner,  Dudley,  offered  a  prayer  asking 
forgiveness  for  them  all  if  either  of  them  should  be  tempted  to 
commit  a  rash  act,  and  that  their  souls  might  be  saved.  That 
Dudley,  with  the  assent  of  Stephens,  went  to  the  boy,  and  telling 
him  that  his  time  was  come,  put  a  knife  into  his  throat  and  killed 
him  then  and  there;  that  the  three  men  fed  upon  the  body  and  blood 
of  the  boy  for  four  days;  that  on  the  fourth  day  after  the  act  had 
been  committed  the  boat  was  picked  up  by  a  passing  vessel,  and 
the  prisoners  were  rescued,  still  alive,  but  in  the  lowest  state  of 
prostration.  That  they  were  carried  to  the  port  of  Falmouth,  and 
committed  for  trial  at  Exeter.  That  if  the  men  had  not  fed  upon 
the  body  of  the  boy  they  would  probably  not  have  survived  to  be 
so  picked  up  and  rescued,  but  would  within  the  four  days  have 
died  of  famine.  That  the  boy,  being  in  a  much  weaker  condition, 
was  likely  to  have  died  before  them.  That  at  the  time  of  the 
act  in  question  there  was  no  sail  in  sight,  nor  any  reasonable 
prospect  of  relief.  That  under  these  circumstances  there  appeared 
to  the  prisoners  every  probability  that  unless  they  then  fed  or 
very  soon  fed  upon  the  boy  or  one  of  themselves  they  would  die 
of  starvation.  That  there  was  no  appreciable  chance  of  saving 
life  except  by  killing  some  one  for  the  others  to  eat.  That  as- 
suming any  necessity  to  kill  anybody,  there  was  no  greater 
necessity  for  killing  the  boy  than  any  of  the  other  three  men." 
But  whether  upon  the  whole  matter  by  the  jurors  found  the  kill- 
ing of  Richard  Parker  by  Dudley  and  Stephens  be  felony  and 
murder  the  jurors  are  ignorant,  and  pray  the  advice  of  the  Court 
thereupon,  and  if  upon  the  whole  matter  the  Court  shall  be  of 
opinion  that  the  killing  of  Richard  Parker  be  felony  and  mur- 
der, then  the  jurors  say  that  Dudley  and  Stephens  were  each 
guilty  of  felony  and  murder  as  alleged  in  the  indictment." 

LORD  COLERIDGE,  C.  J.  The  two  prisoners,  Thomas  Dudley 
and  Edwin  Stephens,  were  indicted  for  the  murder  of  Richard 
Parker  on  the  high  seas  on  the  25th  of  July  in  the  present  year. 
They  were  tried  before  my  Brother  Huddleston  at  Exeter  on  the 
6th  of  November,  and,  under  the  direction  of  my  learned 
Brother,  the  jury  returned  a  special  verdict,  the  legal  effect  of 


KEGINA   V.    DUDLEY.  79 

which  has  been  argued  before  us,  and  on  which  we  are  now  to 
pronounce  judgment. 

The  special  verdict  as,  after  certain  objections  by  Mr.  Collins 
to  which  the  Attorney  General  yielded,  it  is  finally  settled  before 
us  is  as  follows.  [His  Lordship  read  the  special  verdict  as  above 
set  out.}  From  these  facts,  stated  with  the  cold  precision  of  a 
special  verdict,  it  appears  sufficiently  that  the  prisoners  were  sub- 
ject to  terrible  temptation,  to  sufferings  which  might  break  down 
the  bodily  power  of  the  strongest  man,  and  try  the  conscience  of 
the  best.  Other  details  yet  more  harrowing,  facts  still  more  loath- 
some and  appalling,  were  presented  to  the  jury,  and  are  to  be 
found  recorded  in  my  learned  Brother's  notes.  But  nevertheless 
this  is  clear,  that  the  prisoners  put  to  death  a  weak  and  unoffend- 
ing boy  upon  the  chance  of  preserving  their  own  lives  by  feeding 
upon  his  flesh  and  blood  after  he  was  killed,  and  with  the  cer- 
tainty of  depriving  him  of  any  possible  chance  of  survival.  The 
verdict  finds  in  terms  that  "if  the  men  had  not  fed  upon  the  body 
of  the  boy  they  would  probably  not  have  survived,"  and  that  "the 
boy  being  in  a  much  weaker  condition  was  likely  to  have  died  be- 
fore them."  They  might  possibly  have  been  picked  up  next  day 
by  a  passing  ship;  they  might  possibly  not  have  been  picked  up 
at  all;  in  either  case  it  is  obvious  that  the  killing  of  the  boy  would 
have  been  an  unnecessary  and  profitless  act.  It  is  found  by  the 
verdict  that  the  boy  was  incapable  of  resistance,  and,  in  fact, 
made  none;  and  it  is  not  even  suggested  that  his  death  was  due 
to  any  violence  on  his  part  attempted  against,  or  even  so  much 
as  feared  by,  those  who  killed  him.  Under  these  circumstances 
the  jury  say  that  they  are  ignorant  whether  those  who  killed  him 
were  guilty  of  murder,  and  have  referred  it  to  this  Court  to 
determine  what  is  the  legal  consequence  which  follows  from  the 
facts  which  they  have  found. 

Certain  objections  on  points  of  form  were  taken  by  Mr.  Collins 
before  he  came  to  argue  the  main  point  in  the  case.  First  it  was 
contended  that  the  conclusion  of  the  special  verdict  as  entered  on 
the  record,  to  the  effect  that  the  jury  find  their  verdict  in  accord- 
ance, either  way,  with  the  judgment  of  the  Court,  was  not  put  to 
them  by  my  learned  Brother,  and  that  its  forming  part  of  the 
verdict  on  the  record  invalidated  the  whole  verdict.  But  the 
answer  is  twofold — (1)  that  it  is  really  what  the  jury  meant,  and 


80  NATURE   AND   ELEMENTS. 

that  it  is  but  the  clothing  in  legal  phraseology  of  that  which  is 
already  contained  by  necessary  implication  in  their  unquestioned 
finding,  and  (2)  that  it  is  a  matter  of  the  purest  form,  and  that  it 
appears  from  the  precedents  with  which  we  have  been  furnished 
from  the  Crown  Office,  that  this  has  been  the  form  of  special 
verdicts  in  Crown  cases  for  upwards  of  a  century  at  least. 

Next  it  was  objected  that  the  record  should  have  been  brought 
into  this  Court  by  certiorari,  and  that  in  this  case  no  writ  of 
certiorari  had  issued.  The  fact  is  so;  but  the  objection  is  ground- 
less. Before  the  passing  of  the  Judicature  Act,  1873  (36  &  37 
Viet.  c.  66),  as  the  courts  of  Oyer  and  Terminer  and  Gaol  de- 
livery were  not  parts  of  the  Court  of  Queen's  Bench,  it  was 
necessary  that  the  Queen's  Bench  should  issue  its  writ  to  bring 
before  it  a  record  not  of  its  own,  but  of  another  Court.  But  by 
the  16th  section  of  the  Judicature  Act,  1873,  the  courts  of  Oyer 
and  Terminer  and  Gaol  delivery  are  now  made  part  of  the  High 
Court,  and  their  jurisdiction  is  vested  in  it.  An  order  of  the 
Court  has  been  made  to  bring  the  record  from  one  part  of  the 
court  into  this  chamber,  which  is  another  part  of  the  same  court; 
the  record  is  here  in  obedience  to  that  order;  and  we  are  all  of 
opinion  that  the  objection  fails. 

It  was  further  objected  that,  according  to  the  decision  of  the 
majority  of  the  judges  in  the  Franconia  Case,  there  was  no 
jurisdiction  in  the  Court  at  Exeter  to  try  these  prisoners.  But 

(1)  in  that  case  the  prisoner  was  a  German,  who  had  committed 
the  alleged  offence  as  captain  of  a  German  ship;  these  prisoners 
were  English  seamen,  the  crew  of  an  English  yacht,  cast  away  in 
a  storm  on  the  high  seas,  and  escaping  from  her  in  an  open  boat; 

(2)  the  opinion   of   the   minority   in   the    Franconia  Case  has 
been  since  not  only  enacted  but  declared  by  Parliament  to  have 
been  always  the  law;  and  (3)  17  &  18  Viet.  c.  104,  s.  267,  is 
absolutely  fatal  to  this  objection.  By  that  section  it  is  enacted  as 
follows: — "All  offences  against  property  or  person  committed  in 
or  at   any   place   either  ashore  or  afloat,  out  of   her  Majesty's 
dominions  by  any  master  seaman  or  apprentice  who  at  the  time 
when  the  offence   is   committed  is  or  within  three  months  pre- 
viously has  been  employed  in  any  British  ship,  shall  be  deemed 
to  be  offences  of  the  same  nature  respectively,  and  be  inquired 
of,  heard,  tried,  determined,  and  adjudged  in  the  same  manner 


REGINA   V.    DUDLEY.  81 

and  by  the  same  courts  and  in  the  same  places  as  if  such  offences 
had  been  committed  within  the  jurisdiction  of  the  Admiralty  of 
England."  We  are  all  therefore  of  opinion  that  this  objection 
likewise  must  be  overruled. 

There  remains  to  be  considered  the  real  question  in  the  case — 
whether  killing  under  the  circumstances  set  forth  in  the  verdict 
be  or  be  not  murder.  The  contention  that  it  could  be  anything 
else  was,  to  the  minds  of  us  all,  both  new  and  strange,  and  we 
stopped  the  Attorney  General  in  his  negative  argument  in  order 
that  we  might  hear  what  could  be  said  in  support  of  a  proposition 
which  appeared  to  us  to  be  at  once  dangerous,  immoral,  and 
opposed  to  all  legal  principle  and  analogy.  All,  no  doubt,  that 
can  be  said  has  been  urged  before  us,  and  we  are  now  to  consider 
and  determine  what  it  amounts  to.  First  it  is  said  that  it  follows 
from  various  definitions  of  murder  in  books  of  authority,  which 
definitions  imply,  if  they  do  not  state,  the  doctrine,  that  in  order 
to  save  your  own  life  you  may  lawfully  take  away  the  life  of 
another,  when  that  other  is  neither  attempting  nor  threatening 
yours,  nor  is  guilty  of  any  illegal  act  whatever  toward  you  or 
any  one  else.  But  if  these  definitions  be  looked  at  they  will  not 
be  found  to  sustain  this  contention.  The  earliest  in  point  of  date 
is  the  passage  cited  to  us  from  Bracton,  who  lived  in  the  reign  of 
Henry  III.  It  was  at  one  time  the  fashion  to  discredit  Bracton, 
as  Mr.  Reeve  tells  us,  because  he  was  supposed  to  mingle  too 
much  of  the  canonist  and  civilian  with  the  common  lawyer.  There 
is  now  no  such  feeling,  but  the  passage  upon  homicide,  on  which 
reliance  is  placed,  is  a  remarkable  example  of  the  kind  of  writing 
which  may  explain  it.  Sin  and  crime  are  spoken  of  as  apparently 
equally  illegal,  and  the  crime  of  murder,  it  is  expressly  declared, 
may  be  committed  lingua  vel  facto;  so  that  a  man,  like  Hero 
"done  to  death  by  slanderous  tongues,"  would,  it  seems,  in  the 
opinion  of  Bracton,  be  a  person  in  respect  of  whom  might  be 
grounded  a  legal  indictment  for  murder.  But  in  the  very 
passage  as  to  necessity,  on  which  reliance  has  been  placed,  it  is 
clear  that  Bracton  is  speaking  of  necessity  in  the  ordinary  sense — 
the  repelling  by  violence,  violence  justified  so  far  as  it  was  nec- 
essary for  the  object,  any  illegal  violence  used  towards  oneself. 
If,  says  Bracton,  the  necessity  be  evitdbilis,  et  evadere  posset 
dbsque  occisione,  tune  erit  reus  homicidii — words  which  show 
6 


82  NATURE   AND   ELEMENTS. 

clearly  that  he  is  thinking  of  physical  danger  from  which  escape 
may  be  possible,  and  that  the  inevitabilis  necessitas  of  which  he 
speaks  as  justifying  homicide  is  a  necessity  of  the  same  nature. 

It  is,  if  possible,  yet  clearer  that  the  doctrine  contended  for 
receives  no  support  from  the  great  authority  of  Lord  Hale.  It 
is  plain  that  in  his  view  the  necessity  which  justified  homicide  is 
that  only  which  has  always  been  and  is  now  considered  a  justifica- 
tion. "In  all  these  cases  of  homicide  by  necessity,"  says  he,  "as 
in  pursuit  of  a  felon,  in  killing  him  that  assaults  to  rob,  or  comes 
to  burn  or  break  a  house,  or  the  like,  which  are  in  themselves  no 
felony"  (1  Hale's  Pleas  of  the  Crown,  p.  491).  Again,  he  says 
that  "the  necessity  which  justifies  homicide  is  of  two  kinds:  (1) 
the  necessity  which  is  of  a  private  nature ;  (2)  the  necessity  which 
relates  to  the  public  justice  and  safety.  The  former  is  that  neces- 
sity which  obligeth  a  man  to  his  own  defence  and  safeguard,  and 
this  takes  in  these  inquiries: — (1)  "What  may  be  done  for  the 
safeguard  of  a  man's  own  life;"  and  then  follow  three  other  heads 
not  necessary  to  pursue.  Then  Lord  Hale  proceeds : — "As  touch- 
ing the  first  of  these — viz.,  homicide  in  defence  of  a  man's  own 
life,  which  is  usually  styled  se  defendendo"  It  is  not  possible 
to  use  words  more  clear  to  show  that  Lord  Hale  regarded  the 
private  necessity  which  justified,  and  alone  justified,  the  taking 
the  life  of  another  for  the  safeguard  of  one's  own  to  be  what  is 
commonly  called  "self-defence."  (Hale's  Pleas  of  the  Crown,  i. 
478.) 

But  if  this  could  be  even  doubtful  upon  Lord  Hale's  words, 
Lord  Hale  himself  has  made  it  clear.  For  in  the  chapter  in  which 
he  deals  with  the  exemption  created  by  compulsion  or  necessity 
he  thus  expresses  himself: — "If  a  man  be  desperately  assaulted 
and  in  peril  of  death,  and  cannot  otherwise  escape  unless,  to 
satisfy  his  assailant's  fury,  he  will  kill  an  innocent  person  then 
present,  the  fear  and  actual  force  will  not  acquit  him  of  the  crime 
and  punishment  of  murder,  if  he  commit  the  fact,  for  he  ought 
rather  to  die  himself  than  kill  an  innocent;  but  if  he  cannot 
otherwise  save  his  own  life  the  law  permits  him  in  his  own 
defence  to  kill  the  assailant,  for  by  the  violence  of  the  assault, 
and  the  offence  committed  upon  him  by  the  assailant  himself,  the 
law  of  nature,  and  necessity,  hath  made  him  his  own  protector 
cum  debito  moderamine  inculpates  tutelce"  (Hale's  Pleas  of  the 
Crown,  vol.  i.  51.) 


REGINA   V.    DUDLEY.  83 

But,  further  still,  Lord  Hale  in  the  following  chapter  deals 
with  the  position  asserted  by  the  casuists,  and  sanctioned,  as  he 
says,  by  Grotius  and  Puffendorf ,  that  in  a  case  of  extreme  neces- 
sity, either  of  hunger  or  clothing;  "theft  is  no  theft,  or  at  least  not 
punishable  as  theft,  as  some  even  of  our  own  lawyers  have  asserted 
the  same."  "But,"  says  Lord  Hale,  "I  take  it  that  here  in  Eng- 
land, that  rule,  at  least  by  the  laws  of  England,  is  false;  and 
therefore,  if  a  person,  being  under  necessity  for  want  of  victuals 
or  clothes,  shall  upon  that  account  clandestinely  and  animo 
furandi  steal  another  man's  goods,  it  is  felony,  and  a  crime  by 
the  laws  of  England  punishable  with  death."  (Hale,  Pleas  of  the 
Crown,  i.  54.)  If,  therefore,  Lord  Hale  is  clear — as  he  is — that 
extreme  necessity  of  hunger  does  not  justify  larceny,  what  would 
he  have  said  to  the  doctrine  that  it  justified  murder? 

It  is  satisfactory  to  find  that  another  great  authority,  second, 
probably,  only  to  Lord  Hale,  speaks  with  the  same  unhesitating 
clearness  on  this  matter.  Sir  Michael  Foster,  in  the  3rd  chapter 
of  his  Discourse  on  Homicide,  deals  with  the  subject  of  "homicide 
founded  in  necessity;"  and  the  whole  chapter  implies,  and  is 
insensible  unless  it  does  imply,  that  in  the  view  of  Sir  Michael 
Foster  "necessity  and  self-defence"  (which  he  defines  as  "oppos- 
ing force  to  force  even  to  the  death")  are  convertible  terms. 
There  is  no  hint,  no  trace,  of  the  doctrine  now  contended  for; 
the  whole  reasoning  of  the  chapter  is  entirely  inconsistent 
with  it. 

In  East's  Pleas  of  the  Crown  (i.  271)  the  whole  chapter  on 
homicide  by  necessity  is  taken  up  with  an  elaborate  discussion  of 
the  limits  within  which  necessity  in  Sir  Michael  Foster's  sense 
(given  above)  of  self-defence  is  a  justification  of  or  excuse  for 
homicide.  There  is  a  short  section  at  the  end  very  generally  and 
very  doubtfully  expressed,  in  which  the  only  instance  discussed 
is  the  well-known  one  of  two  shipwrecked  men  on  a  plank  able  to 
sustain  only  one  of  them,  and  the  conclusion  is  left  by  Sir  Ed  ward 
East  entirely  undetermined. 

What  is  true  of  Sir  Edward  East  is  true  also  of  Mr.  Sergeant 
Hawkins.  The  whole  of  his  chapter  on  justifiable  homicide 
assumes  that  the  only  justifiable  homicide  of  a  private  nature  is 
the  defence  against  force  of  a  man's  person,  house,  or  goods.  In 
the  26th  section  we  find  again  the  case  of  the  two  shipwrecked 


84  NATURE  AND   ELEMENTS. 

men  and  the  single  plank,  with  the  significant  expression  from 
a  careful  writer,  "It  is  said  to  be  justifiable."  So,  too,  Dalton 
c.  150,  clearly  considers  necessity  and  self-defence  in  Sir  Michael 
Foster's  sense  of  that  expression,  to  be  convertible  terms,  though 
he  prints  without  comment  Lord  Bacon's  instance  of  the  two 
men  on  one  plank  as  a  quotation  from  Lord  Bacon,  adding 
nothing  whatever  to  it  of  his  own.  And  there  is  a  remarkable 
passage  at  page  339,  in  which  he  says  that  even  in  the  case  of  a 
murderous  assault  upon  a  man,  yet  before  he  may  take  the  life 
of  the  man  who  assaults  him  even  in  self-defence,  cuncta  prius 
tentanda. 

The  passage  in  Staundforde,  on  which  almost  the  whole  of  the 
dicta  we  have  been  considering  are  built,  when  it  comes  to  be  ex- 
amined, does  not  warrant  the  conclusion  which  has  been  derived 
from  it.  The  necessity  to  justify  homicide  must  be,  he  says,  in- 
evitable, and  the  example  which  he  gives  to  illustrate  his  meaning 
is  the  very  same  which  has  just  been  cited  from  Dalton,  showing 
that  the  necessity  he  was  speaking  of  was  a  physical  necessity, 
and  the  self-defence  a  defence  against  physical  violence.  Russell 
merely  repeats  the  language  of  the  old  text-books,  and  adds  no 
new  authority,  nor  any  fresh  considerations. 

Is  there,  then,  any  authority  for  the  proposition  which  has 
been  presented  to  us?  Decided  cases  there  are  none.  The  case 
of  the  seven  English  sailors  referred  to  by  the  commentator  on 
Grotius  and  by  Puffendorf  has  been  discovered  by  a  gentleman 
of  the  Bar,  who  communicated  with  my  Brother  Huddleston,  to 
convey  the  authority  (if  it  conveys  so  much)  of  a  single  judge 
of  the  island  of  St.  Kitts,  when  that  island  was  possessed  partly 
by  France  and  partly  by  this  country,  somewhere  about  the 
year  1641.  It  is  mentioned  in  a  medical  treatise  published  at 
Amsterdam,  and  is  altogether,  as  authority  in  an  English  court, 
as  unsatisfactory  as  possible.  The  American  case  cited  by  my 
Brother  Stephen  in  his  Digest,  from  Wharton  on  Homicide,  in 
which  it  was  decided,  correctly  indeed,  that  sailors  had  no  right 
to  throw  passengers  overboard  to  save  themselves,  but  on  the 
somewhat  strange  ground  that  the  proper  mode  of  determining 
who  was  to  be  sacrificed  was  to  vote  upon  the  subject  by  ballot, 
can  hardly,  as  my  Brother  Stephen  says,  be  an  authority  satis- 
factory to  a  court  in  this  country.  The  observations  of  Lord 


REGINA   V.   DUDLEY.  85 

Mansfield  in  the  case  of  Hex  v.  Stratton  and  Others,  striking 
and  excellent  as  they  are,  were  delivered  in  a  political  trial,  where 
the  question  was  whether  a  political  necessity  had  arisen  for 
deposing  a  Governor  of  Madras.  But  they  have  little  applica- 
tion to  the  case  before  us,  which  must  be  decided  on  very  differ- 
ent considerations. 

The  one  real  authority  of  former  time  is  Lord  Bacon,  who,  in 
his  commentary  on  the  maxim,  necessitas  inducit  privilegium 
quoad  jura  privata,  lays  down  the  law  as  follows: — "Necessity 
carrieth  a  privilege  in  itself.  Necessity  is  of  three 
sorts — necessity  of  conservation  of  life,  necessity  of  obedi- 
ence, and  necessity  of  the  act  of  God  or  of  a  stranger.  First 
of  conservation  of  life;  if  a  man  steal  viands  to  satisfy  his  present 
hunger,  this  is  no  felony  nor  larceny.  So  if  divers  be  in  danger 
of  drowning  by  the  casting  away  of  some  boat  or  barge,  and  one 
of  them  get  to  some  plank,  or  on  the  boat's  side  to  keep  himself 
above  water,  and  another  to  save  his  life  thrust  him  from  it, 
whereby  he  is  drowned,  this  is  neither  se  defendendo  nor  by  mis- 
adventure, but  justifiable."  On  this  it  is  to  be  observed  that 
Lord  Bacon's  proposition  that  stealing  to  satisfy  hunger  is  no 
larceny  is  hardly  supported  by  Staundf orde,  whom  he  cites  for  it, 
and  is  expressly  contradicted  by  Lord  Hale  in  the  passage  already 
cited.  And  for  the  proposition  as  to  the  plank  or  boat,  it  is  said 
to  be  derived  from  the  canonists.  At  any  rate  he  cites  no  authority 
for  it,  and  it  must  stand  upon  his  own.  Lord  Bacon  was  great 
even  as  a  lawyer;  but  it  is  permissible  to  much  smaller  men, 
relying  upon  principle  and  on  the  authority  of  others,  the  equals 
and  even  the  superiors  of  Lord  Bacon  as  lawyers,  to  question  the 
soundness  of  his  dictum.  There  are  many  conceivable  states  of 
things  in  which  it  might  possibly  be  true,  but  if  Lord  Bacon 
meant  to  lay  down  the  broad  proposition  that  a  man  may  save 
his  life  by  killing,  if  necessary,  an  innocent  and  unoffending 
neighbor,  it  certainly  is  not  law  at  the  present  day. 

There  remains  the  authority  of  my  Brother  Stephen,  who 
both  in  his  Digest  and  in  his  History  of  the  Criminal  Law,  uses 
language  perhaps  wide  enough  to  cover  this  case.  The  language 
is  somewhat  vague  in  both  places,  but  it  does  not  in  either  place 
cover  this  case  of  necessity,  and  we  have  the  best  authority  for 
saying  that  it  was  not  meant  to  cover  it.  If  it  had  been  neces- 


86  NATURE    AND   ELEMENTS. 

sary,  we  must  with  true  deference  have  differed  from  him,  but  it 
is  satisfactory  to  know  that  we  have,  probably  at  least,  arrived  at 
no  conclusion  in  which  if  he  had  been  a  member  of  the  court  he 
would  have  been  unable  to  agree.  Neither  are  we  in  conflict 
with  any  opinion  expressed  upon  the  subject  by  the  learned  per- 
sons who  formed  the  commission  for  preparing  the  Criminal 
Code.  They  say  on  this  subject : — 

"We  are  certainly  not  prepared  to  suggest  that  necessity  should 
in  every  case  be  a  justification.  We  are  equally  unprepared  to 
suggest  that  necessity  should  in  no  case  be  a  defence;  we  judge 
it  better  to  leave  such  questions  to  be  dealt  with  when,  if  ever, 
they  arise  in  practice  by  applying  the  principles  of  law  to  the 
circumstances  of  the  particular  case." 

It  would  have  been  satisfactory  to  us  if  these  eminent  persons 
could  have  told  us  whether  the  received  definitions  of  legal  neces- 
sity were  in  their  judgment  correct  and  exhaustive,  and  if  not,  in 
what  way  they  should  be  amended,  but  as  it  is  we  have,  as  they 
say,  "to  apply  the  principles  of  law  to  the  circumstances  of  this 
particular  case." 

Now,  except  for  the  purpose  of  testing  how  far  the  conserva- 
tion of  a  man's  own  life  is  in  all  cases  and  under  all  circumstances, 
an  absolute,  unqualified,  and  paramount  duty,  we  exclude  from 
our  consideration  all  the  incidents  of  war.  We  are  dealing  with 
a  case  of  private  homicide,  not  one  imposed  upon  men  in  the 
service  of  their  Sovereign  and  in  the  defence  of  their  country. 
Now  it  is  admitted  that  the  deliberate  killing  of  this  unoffending 
and  unresisting  boy  was  clearly  murder,  unless  the  killing  can  be 
justified  by  some  well-recognized  excuse  admitted  by  the  law.  It 
is  further  admitted  that  there  was  in  this  case  no  such  excuse, 
unless  the  killing  was  justified  by  what  has  been  called  "neces- 
sity." But  the  temptation  to  the  act  which  existed  here  was  not 
what  the  law  has  ever  called  necessity.  Nor  is  this  to  be  re- 
gretted. Though  law  and  morality  are  not  the  same,  and  many 
things  may  be  immoral  which  are  not  necessarily  illegal,  yet  the 
absolute  divorce  of  law  from  morality  would  be  of  fatal  conse- 
quence; and  such  divorce  would  follow  if  the  temptation  to 
murder  in  this  case  were  to  be  held  by  law  an  absolute  defence 
of  it.  It  is  not  so.  To  preserve  one's  life  is  generally  speaking  a 
duty,  but  it  may  be  the  plainest  and  the  highest  duty  to  sacrifice 


REGINA   V.   DUDLEY.  87 

it.  War  is  full  of  instances  in  which  it  is  a  man's  duty  not  to 
live,  but  to  die.  The  duty,  in  case  of  shipwreck,  of  a  captain  to 
his  crew,  of  the  crew  to  the  passengers,  of  soldiers  to  women  and 
children,  as  in  the  noble  case  of  the  Birkenhead;  these  duties 
impose  on  men  the  moral  necessity,  not  of  the  preservation,  but 
of  the  sacrifice  of  their  lives  for  others,  from  which  in  no  coun- 
try, least  of  all,  it  is  to  be  hoped,  in  England,  will  men  ever 
shrink,  as  indeed,  they  have  not  shrunk.  It  is  not  correct,  there- 
fore, to  say  that  there  is  any  absolute  or  unqualified  necessity  to 
preserve  one's  life.  Necesse  est  ut  earn,  non  ui  vivam,  is  a  saying 
of  a  Roman  officer  quoted  by  Lord  Bacon  himself  with  high 
eulogy  in  the  very  chapter  on  necessity  to  which  so  much  ref- 
erence has  been  made.  It  would  be  a  very  easy  and  cheap 
display  of  commonplace  learning  to  quote  from  Greek  and  Latin 
authors,  from  Horace,  from  Juvenal,  from  Cicero,  from 
Euripides,  passage  after  passage,  in  which  the  duty  of  dying  for 
others  has  been  laid  down  in  glowing  and  emphatic  language  as 
resulting  from  the  principles  of  heathen  ethics;  it  is  enough  in  a 
Christian  country  to  remind  ourselves  of  the  Great  Example 
whom  we  profess  to  follow.  It  is  not  needful  to  point  out  the 
awful  danger  of  admitting  the  principle  which  has  been  -con- 
tended for.  Who  is  to  be  the  judge  of  this  sort  of  necessity?  By 
what  measure  is  the  comparative  value  of  lives  to  be  measured? 
Is  it  to  be  strength,  or  intellect,  or  what?  It  is  plain  that  the  prin- 
ciple leaves  to  him  who  is  to  profit  by  it  to  determine  the  neces- 
sity which  will  justify  him  in  deliberately  taking  another's  life 
to  save  his  own.  In  this  case  the  weakest,  the  youngest,  the  most 
unresisting,  was  chosen.  Was  it  more  necessary  to  kill  him  than 
one  of  the  grown  men?  The  answer  must  be  "No" — 

"So  spake  the  Eiend,  and  with  necessity, 
The  tyrant's  plea,  excused  his  devilish  deeds." 

It  is  not  suggested  that  in  this  particular  case  the  deeds  were 
"devilish,"  but  it  is  quite  plain  that  such  a  principle  once 
admitted  might  be  made  the  legal  cloak  for  unbridled  passion 
and  atrocious  crime.  There  is  no  safe  path  for  judges  to  tread 
but  to  ascertain  the  law  to  the  best  of  their  ability  and  to  declare 
it  according  to  their  judgment;  and  if  in  any  case  the  law  appears 
to  be  too  severe  on  individuals,  to  leave  it  to  the  Sovereign  to 


88  NATURE   AND   ELEMENTS. 

exercise  that  prerogative  of  mercy  which  the  Constitution  has 
intrusted  to  the  hands  fittest  to  dispense  it. 

It  must  not  be  supposed  that  in  refusing  to  admit  temptation 
to  be  an  excuse  for  crime  it  is  forgotten  how  terrible  the  tempta- 
tion was;  how  awful  the  suffering;  how  hard  in  such  trials  to 
keep  the  judgment  straight  and  the  conduct  pure.  We  are  often 
compelled  to  set  up  standards  we  cannot  reach  ourselves,  and  to 
lay  down  rules  which  we  could  not  ourselves  satisfy.  But  a  man 
has  no  right  to  declare  temptation  to  be  an  excuse,  though  he 
might  himself  have  yielded  to  it,  nor  allow  compassion  for  the 
criminal  to  change  or  weaken  in  any  manner  the  legal  definition 
of  the  crime.  It  is  therefore  our  duty  to  declare  that  the 
prisoners'  act  in  this  case  was  willful  murder,  that  the  facts  as 
stated  in  the  verdict  are  no  legal  justification  of  the  homicide; 
and  to  say  that  in  our  unanimous  opinion  the  prisoners  are  upon 
this  special  verdict  guilty  of  murder. 

U.  S.  v.  Holmes,  1  Wall  Jr.  1,  22;  Rex  v.  Stratton,  21  Ho  well  St  Tr. 
1045;  Respublica  v.  McCarty,  2  Dall  86;  Oliver  v.  State,  17  Ala.  587; 
Dupree  v.  State,  33  Ala.  380;  Kennedy  v.  Com.,  14  Bush.  340;  Com.  v. 
Drum,  58  Pa.  St.  1;  Farris  v.  Com.,  14  Bush.  362;  Arp  v.  State,  12  So. 
Rep.  301;  19  L.  R.  A.  357;  Clark,  p.  73;  Bishop  I.,  346;  Wharton,  Sec.  95; 
Hawley  &  McGregor,  p.  2. 


g- 

Justification  and  Excuse. 

(1)  Mistake  of  Fact. 
Mistake  of  fact  excuses  the  offence. 


STATE  v. 

Court  of  Appeals  of  Missouri,  1879. 
7  Mo.  App.  510. 

LEWIS,  P.  J.,  delivered  the  opinion  of  the  court. 

The  defendant,  a  car-driver  and  conductor  on  the  Lindell 
Railway,  was  convicted  in  the  Court  of  Criminal  Correction  of 
an  assault  and  battery  committed  upon  the  person  of  Oscar 


STATE  v.  M'DONALD.  89 

"Wielns.  The  only  question  raised  by  the  appeal  is  whether,  when 
a  passenger  on  a  street-car  has  in  fact  paid  his  fare,  the  conductor 
is  justified  in  forcibly  ejecting  him  from  the  car,  because  he,  the 
conductor,  honestly  believes  that  the  passenger  has  not  paid  his 
fare,  but  persistently  refuses  so  to  do. 

If  this  were  a  civil  action  for  damages,  there  can  be  no  ques- 
tion that  the  passenger,  in  the  case  stated,  would  be  entitled  to 
recover.  When  a  passenger  on  a  street-car  has  dropped  his  fare 
in  the  box  provided  and  placed  for  that  purpose,  he  has  an 
absolute  right  to  remain  on  the  car,  in  an  orderly  manner,  until 
it  reaches  his  destination  on  the  line  of  the  railway.  If  the  con- 
ductor, nevertheless,  assuming  that  the  fare  is  not  paid,  violates 
the  passenger's  right  Ly  putting  him  off  the  car,  he  manifestly 
does  so  at  his  peril,  in  so  far  as  any  question  of  indemnification 
may  arise.  If  one  willfully  destroys  my  property,  honestly  be- 
lieving it  to  be  his  own,  it  will  be  no  defence,  against  my  claim 
for  indemnity,  to  say  that  he  made  a  mistake  about  the  owner- 
ship. The  law  protects  me  in  my  property  against  intentional 
wrong-doers.  If  in  such  case  either  party  must  suffer,  it  should, 
by  every  rule  of  fairness  and  common  sense,  be  he  who  made  the 
mistake,  rather  than  the  other.  A  peaceable  citizen  deprived  of 
his  rights  in  a  public  conveyance,  and  subjected  to  gross  indignity 
besides,  is  not  to  be  denied  redress  because  the  servant  in  charge 
was  not  sufficiently  observant  to  know  the  true  state  of  the  case. 
The  learned  judge  who  heard  this  cause  in  the  court  below  evi- 
dently recognized  these  general  principles,  but  he  erred  in  hold- 
ing them  applicable  to  a  criminal  prosecution.  There  is  here  no 
question  of  indemnity  to  the  person  injured.  The  only  question 
is,  has  the  defendant  committed  a  crime  against  the  peace  and 
dignity  of  the  State? 

Crime  cannot  exist  without  a  criminal  intent.  A  man  at  mid- 
night discovers  an  intruder  on  his  premises,  under  circumstances 
which  furnish  reasonable  cause  to  apprehend  that  a  felony  is  in 
progress,  or  about  to  be  perpetrated.  He  kills  the  supposed 
burglar,  in  the  honest  belief  that  nothing  less  will  save  his  own 
life  or  property.  It  turns  out  that  the  intruder  was  innocent  of 
any  criminal  purpose;  yet  his  slayer  has  committed  no  crime, 
either  in  morals  or  in  law,  deserving  punishment.  The  criminal 
intent  was  wanting.  A  person  passes  counterfeit  money,  being 


90  NATURE    AND    ELEMENTS. 

ignorant  of  its  character  and  honestly  believing  it  to  be  genuine; 
the  one  who  receives  it  may  recover  for  the  wrong  done  him, 
notwithstanding  the  innocent  mistake  of  the  passer.  And  yet  an 
indictment  against  the  passer  of  the  money  would  fail,  because 
he  was  guilty  of  no  criminal  intent.  In  the  case  before  us,  ac- 
cording to  the  facts  stated,  the  defendant  honestly  believed  that 
he  was  simply  discharging  his  duty  in  putting  off  a  passenger 
who  refused  to  pay  his  fare,  and  therefore  in  so  doing  he  com- 
mitted no  crime.  The  court  erred  in  giving  instructions  in 
support  of  a  contrary  view,  and  in  refusing  instructions  prayed 
for  by  the  defendant  which  were  in  harmony  with  the  principles 
herein  declared. 

The  judgment  is  reversed  and  the  cause  remanded.  All  the 
judges  concur. 

Duncan  v.  State,  7  Humph.  148;  Squire  v.  State,  46  Ind.  459;  Com.  v. 
Mash,  7  Mete.  472;  Stern  v.  State,  53  Ga.  229;  Gordon  v.  State,  52  Ala. 
308;  U.  8.  v.  Pearce,  2  McLean  14;  Meyers  v.  State,  1  Conn.  502;  Reich 
v.  State,  63  Ga.  616;  Goetz  v.  State,  41  Ind.  162;  Crabtree  v.  State,  30 
Ohio  St.  382;  Adler  v.  State,  55  Ala.  16;  Robinins  t?.  State,  63  Ind.  235; 
Faulks  v.  State,  39  Mich.  200;  Moore  v.  State,  65  Ind.  382;  Kreamer  v. 
State,  106  Ind.  192;  Farback  v.  State,  24  Ind.  77;  State  v.  Homes,  17  Mo. 
379;  State  v.  Bond,  8  la.  540;  Com.  v.  Farren,  9  Allen  489;  Clark,  p.  68; 
Bishop  I.,  Sec.  301;  Wharton,  87;  Hawley  &  McGregor,  p.  30. 

NOTE.— Ignorance  of  fact  is  admissible  to  negative  particular  intent. 

Reg.  v  Muscot,  10  Mod.  192,  195;  Scott  v.  Cook,  1  Duval  314;  Rex  v. 
De  Beauvoir,  7  Car.  &  P.  17;  State  v.  Lea,  3  Ala.  602;  Reg.  v.  Moreau, 
11  Q.  B.  1028;  Com.  v.  Cook,  1  Rob.  (Va.)  729. 


(2)  Accident  or  Misadventure. 

One  is  not  criminally  responsible  for  a  lawful  act  lawfully 
done,  no  matter  what  the  consequences. 

ANN  v.  THE  STATE. 

Supreme  Court  of  Tennessee,  1850. 
11  Humph.  159. 

McKiNNEY,  J.,  delivered  the  opinion  of  the  court. 
The  plaintiff  in  error  was  indicted  jointly  with  another  slave 
named  Tom,  in  the  Circuit  Court  of  Williamson,  for  the  murder 


ANN  V.   THE   STATE.  91 

of  Mary  E.  B.  Marr,  the  infant  child  of  their  master  and  mistress. 
The  jury  acquitted  Tom,  and  found  the  plaintiff  in  error  guilty 
as  charged  in  the  indictment.  The  court  refused  to  grant  a  new 
trial,  and  pronounced  judgment  of  death  upon  the  prisoner,  from 
which  an  appeal  in  error  has  been  prosecuted  to  this  court.  It  is 
not  necessary,  in  the  view  we  have  taken  of  the  case,  to  state  the 
evidence  in  detail;  a  mere  outline  will  be  sufficient  to  raise  the 
questions  of  law  presented  for  our  determination,  except  the 
question  in  relation  to  the  admissibility  of  the  prisoner's  con- 
fession. 

The  infant,  of  whose  murder  the  prisoner  stands  convicted, 
was  of  extremely  tender  age,  only  five  weeks  old;  and  the  death 
was  caused  by  an  over-dose  of  laudanum  administered  by  the 
prisoner,  without  the  knowledge  of  any  one,  and  contrary  to  a 
general  command,  not  to  give  the  child  anything  whatever. 

The  prisoner  is  of  immature  age,  being,  at  the  time  of  the 
alleged  murder,  not  over  fifteen  years.  A  day  or  two  preceding 
the  death  of  the  infant,  the  prisoner  was  taken  from  the  negro- 
quarter  on  the  plantation  and  put  in  the  house  to  serve  in  the 
capacity  of  nurse.  On  the  day  of  the  infant's  death,  Mrs.  Man- 
went  into  another  room  to  attend  to  some  of  her  domestic  affairs, 
leaving  the  child  asleep  in  the  cradle  in  care  of  the  prisoner.  She 
remained  absent  about  fifteen  minutes  as  she  supposes,  during 
which  time  the  laudanum  was  administered.  The  child  survived 
about  four  hours.  A  physician  was  immediately  sent  for,  but  did 
not  arrive  until  about  two  hours  after  the  laudanum  was  given, 
and  his  efforts  to  counteract  its  effect  were  unavailing.  He  states, 
that  the  death  was  caused  by  an  over-dose  of  laudanum,  and  that 
half  a  drop  was  as  large  a  dose  as  the  infant  could  have  borne. 

•  The  prisoner  for  some  time  denied  having  given  laudanum  to 
the  infant.  Her  master  was  much  excited;  inflicted  blows  with 
his  hand  upon  the  prisoner;  threatened  to  shoot  her,  but  was  in- 
duced to  desist  by  the  persuasion  of  his  wife,  and  sent  her  off  to 
the  quarter,  where  she  was  put  in  chains  around  her  body  and 
neck.  On  Saturday  evening  after  the  death  of  the  child,  which 
happened  on  the  preceding  day,  Nichols,  the  overseer  of  Marr, 
and  Giles,  the  overseer  of  Perkins,  who  lived  on  an  adjoining 
farm,  went  together  after  night  to  the  house  where  the  prisoner 
was  confined.  Giles  states,  that  she  was  asked  by  him,  "how  she 


92  NATURE    AND    ELEMENTS. 

came  there;"  seemed  slow  in  speaking.  Nichols  told  her  to  speak. 
She  then  said  she  had  given  laudanum  to  the  baby  and  it  had 
killed  it.  He  then  asked  her  how  she  came  to  do  it?  She  said 
Tom  had  been  at  her  to  meet  him  out  at  night,  and  told  her  if 
she  would  give  it  laudanum  it  would  sleep  until  she  could  get 
back;  that  she  had  asked  him  if  it  would  hurt;  he  said  no,  he  had 
given  it  many  times  to  his  wife  Eliza,  and  it  never  hurt  her." 
She  was  told,  she  had  better  come  out  and  tell  the  truth — it  would 
be  better  for  her.  She  was  asked  if  she  would  make  the  same 
statement  before  Tom,  that  she  had  made  to  witness  and  Nichols; 
she  said  she  would.  Witness  and  Nichols  then  went  to  Tom's 
house  and  took  him  into  the  house  where  prisoner  was,  and  told 
her  to  tell  her  tale  again.  She  said  Tom  had  recommended  her 
to  give  it,  and  it  would  make  the  baby  sleep  till  she  could  get 
back;  and  she  asked  him  if  it  would  hurt.  Tom  denied  all  this. 
She  said  she  thought  she  would  try  and  see  if  it  would  make  it 
sleep,  and  had  poured  some  in  her  hand  and  given  it.  That  since- 
she  had  been  chained,  Tom  had  been  there  and  told  her  she  had 
given  it  wrong — that  she  ought  to  have  put  some  brandy  in  it, 
and  sweetened  it,  and  warmed  it,  and  then  the  child  would  not 
have  died  in  several  days;  that  he  told  her  she  must  admit  she 
had  given  it,  but  not  to  call  his  name  or  he  would  shorten  her 
days.  Tom  denied  all  this."  Witness  further  stated,  that  "in  the 
first  talk  with  her,  he  told  it  would  be  better  for  her  to  come  out 
and  tell  the  truth." 

Nichols'  statement  of  the  prisoner's  confession  is  somewhat 
different  from  that  of  Giles ;  but  we  have  thought  proper  to  take 
the  latter  as  probably  the  more  correct  and  reliable  statement. 

There  is  proof  in  the  record  of  an  improper  intimacy  having 
existed  between  Tom  (who  was  of  mature  age)  and  the  prisoner 
for  some  weeks  previous  to  the  removal  of  the  latter  from  the 
quarter  to  the  house.  The  witness,  Nichols,  speaks  of  one  oc- 
casion when  he  detected  them,  but  he  says,  "he  passed  on  and 
said  nothing,  as  it  was  no  business  of  his,  and  he  did  not  care 
what  they  did." 

Judging  from  this  avowal  of  the  overseer,  the  morals  of  the 
slaves  under  his  dominion  were  in  bad  keeping;  and  it  is  not  much 
to  be  wondered  at,  that  the  prisoner — who  was  brought  up  at 
the  quarter — had  a  more  imperfect  sense  of  the  obligations  of 


ANN   V.   THE   STATE.  93 

morality  and  common  decency  than  is  even  usual  among  those  of 
•her  own  caste  and  social  condition. 

The  circuit  judge,  in  his  instructions  to  the  jury — after 
stating  the  general  definition  of  murder  and  malice,  and  laying 
down  some  general  principles,  the  correctness  of  which  is  not 
questioned — said:  "If  Ann,  the  prisoner,  by  force  poured 
laudanum  into  the  mouth  of  Mary  E.  B.  Marr,  such  act,  unless 
excused  or  justified  by  the  evidence,  would  amount  to  a  battery, 
and  she  would  be  responsible  in  law  for  the  natural  effects  of  the 
laudanum  although  they  may  have  been  more  serious  than  she 
designed  or  expected." 

"If  Ann  was  the  slave  of  Nicholas  Marr,  the  witness,  and  was 
employed  by  him  to  attend  to  Mary  E.  B.  Marr;  and  if  she  was 
ordered  by  her  master  not  to  administer  any  thing  to  the  said 
Mary  E.  B.  Marr;  if  she,  without  authority,  willfully  admin- 
istered laudanum  to  said  Mary,  intending  thereby  to  produce 
unnecessary  sleep,  and  contrary  to  her  expectations  it  caused 
death,  she  would  be  guilty  of  murder." 

The  first  question  for  our  consideration  is — was  the  confession 
of  the  prisoner — which  was  objected  to — properly  admitted  as 
evidence  to  the  jury?  This  is  a  question  which  admits  of  no  dis- 
.  cussion.  All  the  authorities  concur,  that  a  confession,  to  be 
admissible  as  evidence,  must  have  been  freely  and  voluntarily 
made,  and  not  under  the  influence  of  promises  or  threats.  As  to 
what  is  such  a  promise  or  threat  as  will  exclude  a  confession,  it 
is  laid  down,  that  saying  to  a  prisoner  it  will  be  worse  for  him  if 
he  do  not  confess;  or  that  it  will  be  better  for  him  if  he  do,  is 
sufficient  to  exclude  the  confession.  2  East.  P.  C.  659.  So  where 
a  surgeon  called  to  see  a  prisoner  charged  with  murder,  said  to 
her,  "you  are  under  suspicion  of  this,  and  you  had  better  tell  all 
you  know,"  the  confession  was  held  inadmissible.  4  C.  and  P. 
387.  So  where  it  was  said  to  the  prisoner,  "it  would  have  been 
better  if  you  had  told  at  first,"  the  confession  was  rejected.  6  C. 
and  P.  175.  It  would  be  a  useless  labor  to  multiply  authorities 
upon  a  point  in  respect  to  which  there  is  no  substantial  disagree- 
ment to  be  found  in  the  books.  Nor  would  it  be  more  profitable 
to  indulge  in  speculation  as  to  the  probable  influence  of  such  a 
promise  or  threat  in  a  particular  case;  certainly  not  in  the  case 
of  a  timid  girl,  of  tender  age,  ignorant  and  illiterate,  a  slave  and 


94  NATURE  AND  ELEMENTS. 

in  chains,  whose  life  had  been  threatened  by  her  master,  and 
against  whom  the  hand  of  every  one,  even  those  of  her  own  color 
and  condition,  seems  to  have  been  raised.  In  such  case,  and 
in  all  cases,  the  law  presumes,  and  conclusively  presumes,  that  an 
influence  was  exerted  upon  the  mind  of  the  prisoner,  and,  there- 
fore, all  inquiry  upon  the  subject  is  precluded. 

2d.  The  next  question  is,  was  the  law  correctly  stated  to  the 
jury?  We  think  not.  The  errors  of  the  charge  will  be  obvious 
from  the  mere  statement  of  a  few  plain  elementary  principles. 

To  constitute  the  crime  of  murder  by  the  common  law,  and  by 
that  law  this  case  is  to  be  governed,  the  killing  must  be  with 
malice  aforethought:  no  matter  by  which  of  the  thousand  means 
adequate  to  the  destruction  of  life,  the  death  may  have  been 
effected.  Malice,  in  its  legal  sense,  is  the  sole  criterion  by  which 
murder  is  distinguished  from  every  other  species  of  homicide. 
The  malice  essential  to  constitute  the  crime  of  murder,  however, 
is  not  confined  to  an  intention  to  take  away  the  life  of  the 
deceased;  but  includes  an  intent  to  do  any  unlawful  act  which 
may  probably  result  in  depriving  the  party  of  life.  It  is  not,  in 
the  language  of  Blackstone,  so  properly  spite  or  malevolence  to 
the  individual  in  particular,  as  an  evil  design  in  general,  the  dic- 
tate of  a  wicked,  depraved,  and  malignant  heart;  and  it  may  be 
either  express  or  implied  in  law.  4  Bl.  Com.  199-200. 

If  an  action,  unlawful  in  itself,  be  done  deliberately  and  with 
intention  of  mischief,  or  great  bodily  harm,  to  particulars,  or  of 
mischief  indiscriminately,  fall  where  it  may,  and  death  ensue; 
against  or  beside  the  original  intention  of  the  party,  it  will  be 
murder.  But,  if  such  mischievous  intention  do  not  appear 
(which  is  matter  of  fact  to  be  collected  from  the  circumstances), 
and  the  act  was  done  heedlessly  and  incautiously,  it  will  be  man- 
slaughter only.  Foster  261.  But,  if  the  death  ensue  in  the  per- 
formance of  a  lawful  act,  it  may  amount  either  to  murder, 
manslaughter,  or  misadventure,  according  to  the  circumstances 
by  which  it  is  accompanied.  Ibid  262,  1  Hale,  472,  4.  Bl. 
Com.  192. 

These  general  principles  apply  as  much  to  a  case  where  death 
ensues  by  means  of  a  medicine  of  poisonous  qualities,  as  to  any 
other  species  of  homicide.  It  is  true,  that  where  one  willfully 
poisons  another,  from  such  deliberate  act  the  law  presumes 


ANN   V.   THE  STATE.  95 

malace,  though  no  particular  enmity  can  be  proved  (4  Bl.  Com. 
199).  But  this  presumption  may  be  displaced  in  a  case  of  death 
from  poison,  as  in  other  cases,  by  direct  proof,  or  by  the  circum- 
stances of  the  particular  case. 

If,  as  Blackstone  says,  the  poison  were  willfully  administered, 
that  is,  with  intent  that  it  should  have  the  effect  of  destroying 
the  life  of  the  party:  or  if,  in  the  language  of  Foster,  the  act  were 
"done  deliberately  and  with  intention  of  mischief,  or  great  bodily 
harm,"  and  death  ensue,  it  will  be  murder.  But  if  it  were  not 
willful,  and  such  deliberate  mischievous  intention  do  not  appear; 
and  the  act  was  done  heedlessly  and  incautiously,  it  will  be  only 
manslaughter  at  most. 

Testing  the  charge  by  these  familiar  principles,  it  is  manifestly 
incorrect  in  several  respects.  It  assumes,  that  if  the  prisoner  ad- 
ministered the  laudanum  in  violation  of  her  master's  order,  for 
the  purpose  of  "producing  unnecessary  sleep,"  and  death  ensued, 
contrary  to  her  intention,  she  is  guilty  of  murder.  This  is  not 
law.  In  the  first  place,  the  charge  puts  the  disobedience  to  the 
master's  order,  on  the  same  footing  with  a  violation  of  a  command 
or  prohibition  of  the  law.  This  is  a  great  mistake.  Such  violation 
of  the  master's  order,  is  not  an  "unlawful  act"  in  the  sense  of  the 
rule  above  stated.  It  is  no  offence  against  the  law  of  the  land: 
nor  is  it  cognizable  by  any  tribunal  created  by  law.  It  is  an 
offence  simply  against  the  private  authority  of  the  master,  and  is 
cognizable  and  punishable  alone  in  the  domestic  forum.  Again: 
the  criminality  of  the  act  is  made  to  depend  upon  an  intent,  with 
reference  to  the  deceased  infant,  which  may  be  in  law,  if  not 
positively  innocent,  at  least  comparatively  so. 

The  laudanum  may  have  been  given  by  the  prisoner  in  utter 
ignorance  of  the  fact  that  it  possessed  any  poisonous  quality; 
and  there  may  have  been  a  total  absence  of  any  intention  to  do 
serious  injury,  or  indeed  injury  of  any  sort,  much  less  to  destroy 
the  life  of  the  child.  If  the  prisoner's  purpose  really  was,  to 
superinduce  a  state  of  temporary  quietude  or  sleep,  without  more, 
in  order  to  afford  better  opportunity,  or  greater  facility,  for 
carrying  on  her  own  illicit  intercourse  with  Tom,  this,  however 
culpable  in  morals,  would  not  involve  her  in  the  guilt  of  murder. 

The  tenderest  of  mothers  might  administer  laudanum  to  her 
infant  incautiously,  in  order  to  be  enabled  to  attend  to  some 


96  NATURE  AND  ELEMENTS. 

pressing  call  of  her  household  affairs,  which  admitted  of  no  de- 
lay: or  a  gay  and  thoughtless  matron,  devoted  to  the  pursuit  of 
pleasure,  though  not  devoid  of  natural  affection  for  her  infant, 
might  give  a  similar  dose  in  order  to  have  opportunity  to  attend 
the  theatre  or  ball-room  for  a  time.  And  although  in  both  the 
latter  cases  the  motive,  so  far  as  respects  the  actors,  is  different, 
and  less  offensive  to  morals  or  propriety,  yet  the  purpose  or  in- 
tention, with  reference  to  the  effect  to  be  produced  upon  the 
child,  is  the  same,  in  kind  at  least,  that  is,  in  the  language  of  the 
charge,  to  "produce  unnecessary  sleep."  And  yet,  perhaps,  no 
one  would  contend  that,  had  death  ensued,  in  either  case,  the 
mother  would  have  been  guilty  of  either  murder  or  man- 
slaughter. 

In  the  case  of  the  prisoner,  her  relation  as  a  slave,  taken  in 
connection  with  her  disregard  of  her  master's  positive  direction, 
and  the  gross  heedlessness  and  incautiousness  of  the  act,  might 
constitute  her  offence  manslaughter,  but  certainly  nothing 
more. 

The  charge  of  the  court  then,  is  not  only  erroneous  in  exclud- 
ing from  the  consideration  of  the  jury,  the  questions  of  fact, 
whether  or  not  the  prisoner  had  knowledge  of  the  poisonous 
quality  of  laudanum,  and  whether  or  not  there  existed  in  the 
mind  of  the  prisoner  an  intent  to  kill,  or  to  do  serious  injury  to 
the  deceased;  but  likewise,  in  not  submitting  it  to  the  jury  to 
determine  the  grade  of  offence,  whether  murder  or  man- 
slaughter. 

If  the  offence  amounted  to  no  more  than  manslaughter,  as  we 
hold  to  be  clear,  then  the  Circuit  Court  had  no  jurisdiction  of  the 
case. 

In  the  case  of  Nelson,  a  slave,  v.  the  State,  at  the  last  Term 
at  Jackson,  it  was  held  that,  by  our  law,  manslaughter  might  be 
committed  by  a  slave;  but  that  the  Circuit  Court  had  no  juris- 
diction of  such  case.  In  delivering  the  judgment  of  the  court  in 
that  case,  Judge  Green  says,  it  is  true,  an  indictment  against  a 
slave  for  murder,  does  not  include  a  charge  of  manslaughter,  be- 
cause by  the  act  of  1819,  ch.  35,  sec.  1,  murder,  committed  by  a 
slave,  is  declared  to  be  capital,  and  by  the  act  of  1835,  ch.  19, 
sec.  9,  exclusive  original  jurisdiction  is  given  to  the  Circuit 
Courts,  of  all  offences  committed  by  slaves,  which  are  punishable 


STATE  V.   BURKE.  97 

with  death:  and  as  manslaughter  is  not  so  punishable,  the  Circuit 
Court  has  no  jurisdiction  thereof. 

By  the  act  of  1815,  ch.  138  (2  Scott's  Kev.  246-247),  a  spe- 
cial tribunal,  consisting  of  three  justices  and  nine  freeholders 
and  slaveholders,  is  created  for  the  trial  of  all  offences  committed 
by  slaves,  that  are  not  capital,  with  authority  to  "pass  such  judg- 
ment, according  to  their  discretion,  as  the  nature  of  the  crime  or 
offence  shall  require,"  not  affecting  life  or  limb.  By  the  act  of 
1819,  ch.  35,  sec.  1,  murder,  arson,  burglary,  rape,  and  robbery, 
when  committed  by  slaves,  are  declared  capital,  and  to  be 
punished  with  death;  and  all  other  offences  are  to  be  punished 
as  theretofore,  provided,  however,  that  such  punishment  shall 
not  extend  to  life  or  limb. 

The  judgment  of  the  Circuit  Court  will  be  reversed. 

Plummet  v.  State,  4  Tex.  Ct.  App.  310;  U.  S.  v.  Meagher,  37  Fed.  Rep. 
875;  State  v.  Benham,  23  la.  154;  Duncan  v.  State,  7  Humph.  148;  Mc- 
Pherson  v.  State,  22  Ga.  478;  Com.  v.  Campbell,  7  Allen  154;  Rice  v. 
State,  8  Mo.  561;  Rex  v.  Macleod,  12  Cox  C.  C.  534;  Robertson  v.  State,. 
2  Lea  239;  Rex  v.  Waters,  6  C.  &  P.  328;  Butler  v.  State,  19  S.  B.  51; 
Rex  v.  Van  Butchell,  3  Car.  &  P.  629;  N.  Y.  Penal  Code,  203;  Clark,  p. 
71;  Wharton,  Sec.  169;  Hawley  &  McGregor,  p.  135. 


(3)  Defence. 
(a)  Of  Self. 

One  may  defend  himself,  or  those  dependent  upon  him,  in 
a  reasonable  and  necessary  manner,  even  to  the  extent  of 
taking  life. 

STATE  v.  BURKE. 

Supreme  Court  of  Iowa,  1870. 
301  la.  331;  33  Atl.  257. 

MILLER,  J.  That  the  deceased,  Henry  Guyer,  came  to  his 
death  by  reason  of  a  blow  inflicted  by  the  defendant  with  a  club 
or  stick  of  wood  is  not  questioned. 

The  defence  insisted  upon  in  the  district  court  was,  that  the 

7 


98  NATURE  AND  ELEMENTS. 

blow  was  struck  by  the  defendant  in  reasonable  self-defence 
when  attacked  by  the  deceased  and  his  brother,  George  Guyer. 

The  evidence  shows  that  the  defendant,  the  deceased,  and  sev- 
eral other  persons  were  at  the  house  of  one  Conrad  Paul,  on  Sun- 
day evening,  November  21,1869;  that  the  defendant  and  George 
Guyer  quarrelled,  and  the  deceased  interfered,  taking  his 
brother's  side  in  the  quarrel.  Paul  protested  against  their  quar- 
relling in  the  house,  and  requested  them  to  desist  or  go  out. 

This  seemed  to  quiet  the  parties  for  a  time,  when  it  was  pro- 
posed by  some  one  of  the  company  that  they  would  go  home, 
and  they  all  went  out  of  the  house  apparently  for  that  purpose. 
It  was  then  quite  dark.  When  all  were  out  of  the  house  and  a 
short  distance  therefrom,  the  quarrel  between  the  defendant, 
deceased  and  George  Guyer,  was  renewed,  and  a  fight  with  clubs 
ensued,  in  which  the  defendant  struck  the  blow  that  caused  the 
death  of  Henry  Guyer.  The  witnesses  are  not  agreed  as  to  who 
made  the  first  attack.  There  was  evidence  tending  to  show  that 
the  Guyers  made  the  first  attack,  and  that  the  fight  was  forced 
by  them  on  defendant.  The  medical  witnesses  testified  that  the 
skull  of  the  deceased  was  much  thinner  than  an  ordinary  human 
skull,  and  that  a  lighter  blow  would  produce  the  injury  found 
in  the  skull  of  deceased  than  on  an  ordinary  skull. 

On  the  trial  the  defendant's  counsel  requested  the  following 
instructions:  "If  the  jury  believe  that  George  Guyer  and 
deceased  made  the  first  attack  upon  the  defendant,  armed  with 
clubs,  from  which  he  had  reason  to,  and  did,  believe  that  he  was 
in  imminent  danger  of  great  bodily  harm,  it  was  lawful  for  him 
to  resist  such  attack  with  a  weapon  of  like  character  to  that  used 
by  his  assailants,  and  if  in  the  use  of  such  weapon,  while  exercis- 
ing reasonable  care  to  produce  no  greater  injury  than  was  neces- 
sary to  protect  himself  from  great  bodily  injury,  he  uninten- 
tionally gave  a  blow  which  would  in  ordinary  cases  have  been  no 
more  than  was  necessary  to  repel  the  assault  made  upon  him, 
but,  which,  by  reason  of  the  peculiar  character  of  the  skull  of 
the  deceased,  or  of  the  particular  place  where  the  blow  happened 
to  fall,  did  produce  death,  the  defendant  would  not  be  guilty  of 
the  crime  charged." 

"If  the  jury  believe  that  George  Guyer  and  deceased,  acting 
in  concert  and  with  the  intention  of  inflicting  great  bodily  injury 


STATE   V.    BURKE.  99 

upon  defendant,  made  an  attack  upon  him,  armed  with  clubs, 
and  struck  him  the  first  blow,  and  that  they  were  in  such  close 
proximity  to  him  at  the  time  of  such  attack  that  he  could  not 
retreat  without  danger  of  great  bodily  harm,  then  he  had  the 
right  to  resist  such  attack  with  a  weapon  of  the  same  character 
as  those  used  by  his  assailants,  and  if,  in  using  such  weapon,  while 
exercising  reasonable  care  to  apply  no  more  force  than  was  neces- 
sary to  repel  the  attack  upon  him,  he  accidentally  and  uninten- 
tionally gave  a  blow  to  his  assailant  which  produced  death,  such 
act  would  not  be  criminal  and  the  jury  should  not  for  that  rea- 
son convict." 

"If  the  jury  believe  that  George  Guyer  and  deceased,  acting 
in  concert  and  with  the  intention  of  inflicting  great  bodily  harm 
upon  defendant,  attacked  him  with  clubs,  the  defendant  had  the 
right  to  resist  such  attack  with  a  weapon  of  like  character,  and 
if,  in  the  necessary  defence  of  his  own  person  and  without  using 
any  more  force,  or  a  more  dangerous  weapon  than  was  being 
used  against  him,  he  inflicted  a  blow  which  he  had  reason  to,  and 
did,  believe  was  necessary  for  his  own  protection,  but  which, 
unintentionally  upon  his  part,  produced  death,  such  act  would 
not  be  criminal  and  the  jury  should  acquit." 

The  court  refused  each  of  these  instructions,  and  gave  the  fol- 
lowing, touching  the  right  of  self-defence. 

"If  the  jury  believe  from  the  evidence  that  the  defendant, 
without  solicitation  and  against  his  will,  was  attacked  by  the 
deceased  with  a  deadly  weapon,  and  the  attack  was  such  as  to 
create  a  fear  of  death  in  the  mind  of  a  person  of  ordinary 
courage  and  prudence,  and  did  create  such  an  apprehension  in 
the  mind  of  the  defendant,  then  he  would  be  justified  in  using  a 
similiar  weapon  with  prudence  and  caution  in  defending  himself, 
and  if  you  find  from  the  evidence  that  in  the  exercise  of  such 
prudence  and  caution,  and  in  reasonable  fear  of  imminent  danger 
to  his  own  life,  the  defendant  took  the  life  of  the  deceased,  you 
must  find  the  defendant  not  guilty." 

To  the  giving  of  this  instruction,  and  in  refusing  those  asked 
by  the  defendant,  proper  exceptions  were  taken. 

There  was  error  in  these  rulings  of  the  court.  By  refusing  the 
instructions  asked  by  the  defendant  and  giving  the  above,  the 
court  denied  the  defendant  the  benefit  of  the  plea  of  self-defence 


100  NATURE  AND   ELEMENTS. 

if  he  took  his  assailant's  life  to  save  himself  from  imminent 
danger  of  great  bodily  injury.  The  law  gives  a  person  the  same 
right  to  use  such  force  as  may  be  reasonably  necessary,  under 
the  circumstances  by  which  he  is  surrounded,  to  protect  himself 
from  great  bodily  harm,  as  it  does  to  prevent  his  life  being  taken. 
He  may  excusably  use  this  necessary  force  to  save  himself  from 
any  felonious  assault.  It  was  expressly  so  held  by  this  court  in 
the  case  of  The  State  v.  Benham,  23  Iowa,  154,  162.  The  same 
view  is  supported  in  the  following  cases:  The  State  v.  Thompson, 
9  Iowa,  188;  The  State  v.  Decklotts,  19  id.  447;  The  State  v. 
Neely,  20  id.  108;  The  State  v.  Kennedy,  id.  569. 

The  judgment  of  the  district  court  is  reversed  and  a  new  trial 
ordered. 

Reversed. 

STATE  v.  PEO. 

Court  of  Oyer  and  Terminer  of  Delaware,  1889. 
9  Houston,  488. 

COMEGYS,  C.  J.,  charging  the  jury: 

Gentlemen  of  the  Jury:  The  instructions  prayed  for  by  the 
Attorney  General,  and  the  prisoner's  counsel,  make  it  necessary 
that  the  court  should  deliver  to  you  a  more  formal  charge  than 
would  otherwise  be  made — although  the  testimony  laid  before 
you  on  each  side  discloses  a  case  differing  in  its  facts  from  any 
hitherto  tried  in  this  State.  As  I  do  not  purpose  going  over  the 
testimony  in  detail,  it  will  be  sufficient  I  think  to  say,  with 
respect  to  it,  that  it  shows  a  fight  between  the  prisoner  and  the 
deceased  at  or  about  the  corner  of  Front  and  Market  streets  in 
this  city,  which  had  its  origin,  either  in  words,  or  personal 
violence,  or  both,  upon  the  sidewalk  in  front  of  the  prisoner's 
store  and  peanut  stand  at  the  northeast  corner  where  those 
streets  intersect  each  other,  or  in  the  store  itself.  The  one  thing 
certain,  as  I  think  I  may  say,  is  that  for  some  reason  or  other, 
which  you  may  gather  from  the  testimony  on  both  sides,  a  fight 
took  place  between  the  deceased  and  the  prisoner,  which  was 
begun  by  one  or  the  other  of  the  combatants — the  State's  witnesses 
or  those  who  spoke  to  that  point  supporting  the  theory  that  the 


STATE  V.   PEG.  101 

first  assault  was  by  the  prisoner;  while  those  for  the  defence,  who 
speak  of  the  beginning  of  the  affray,  say  it  commenced  by  the 
act  of  the  deceased  in  violently  seizing  the  prisoner  by  the  throat 
in  his  store,  after  using  a  very  opprobrious  epithet  about  him. 
However,  the  fight  began,  it  became  a  mutual  combat,  both  of 
them  participating  in  it — the  State  contending  that  the  deceased 
was  in  no  sense  the  aggressor,  but  that  the  prisoner  was:  while, 
on  the  other  side,  it  is  claimed  that  the  first  assailant  was  the 
deceased;  and  that  throughout  the  prisoner  was  strictly  on  the 
defensive,  endeavoring  to  avoid  collision  with  his  opponent,  or 
to  escape  it  after  it  ensued.  The  conflict  of  testimony  on  this 
point,  as  upon  all  others  in  this  trial,  I  submit  to  you  to  decide 
upon,  as  it  is  not  within  the  province  of  this  court  to  do  so, 
or  more  than  to  instruct  how  you  shall  decide  a  conflict  wherever 
it  occurs.  Where  there  is  opposing  testimony  upon  a  material 
point  in  a  cause,  the  jury  must  examine  the  proof  carefully,  and 
give  credit  to  that  which  under  all  the  circumstances  seems  to 
them  entitled  to  the  most  weight.  In  doing  this  they  take  into 
consideration  the  number  and  character  of  the  witnesses  on  both 
sides,  their  intelligence,  apparent  freedom  from  bias,  or  pre- 
judice, their  means  of  observation,  and  concurrence  in  statement; 
and  where  there  seems  to  be  better  reason  to  rely  upon  those  of 
one  side  than  the  other,  then  there  exists  greater  weight  of  testi- 
mony on  the  part  of  the  former — preponderance  of  proof  as  it  is 
called — and  the  jury  should  yield  its  credence  to  the  testimony 
of  that  side.  But  it  should  always  be  kept  in  mind  that  this  rule 
does  not  apply  to  all  the  aggregate  of  the  testimony  on  both 
sides;  for  if  it  did,  a  person  accused  and  on  trial,  might  be  con- 
victed upon  the  weight  of  testimony  alone,  whereas  this  is  never 
to  be  done;  nothing  being  sufficient  to  warrant  a  conviction  of  a 
prisoner,  but  entire  satisfaction  on  the  part  of  the  jury  beyond 
a  reasonable  doubt,  that  he  is  guilty.  It  must  not  be  only  that 
the  weight  of  the  proof  is  against  the  prisoner,  but  that  it  also 
so  preponderates  over,  or  outweighs  that  on  his  part,  as  to  leave 
no  reasonable  doubt  of  his  guilt  of  the  crime  imputed  to  him. 

After  this  contest  had  commenced,  the  deceased  and  the 
prisoner  got  out  into  the  street  in  the  strife  between  them,  and 
soon  afterwards  the  deceased  overcame  the  prisoner  and  threw 
him  on  the  pavement  of  the  street  and  on  an  iron  gutter  cover  in 


102  NATURE  AND  ELEMENTS. 

it,  with  great  violence,  according  to  the  prisoner's  witnesses,  or 
some  of  them,  and  held  him  down  so  firmly  that,  according  to 
one  of  them,  it  took  three  or  four  men  to  take  him  away  from  the 
deceased.  After  they  were  separated,  it  was  found  that  the 
deceased  had  received  a  mortal  stab  from  the  pick  which  the 
prisoner  used  at  his  store  in  his  sale  of  dates,  and  which  he  had 
in  his  hand  at  the  time  the  deceased  was  taken  from  off  him. 
There  seems  no  room  for  doubt  that  during  the  whole  time  of  the 
affray  outside  the  prisoner's  store,  he  had  the  pick  in  his  hands; 
for  he  never  got  back  into  the  store  from  the  time  the  contest 
began  until  it  ended  where  the  parties  fell,  with  the  deceased  on 
top  of  him.  By  the  testimony  of  the  prisoner's  witnesses,  it  is 
stated,  that  the  deceased  was  a  large,  powerful  man,  much  the 
physical  superior  of  the  prisoner.  By  the  testimony  of  the 
State's  witnesses,  speaking  to  the  point,  it  would  seem  that  the 
deceased  from  the  first  was  rather  in  the  character  of  a  defender 
of  his  person  from  the  attempts  of  the  prisoner  to  stab  him  with 
the  pick,  and  that  for  such  purpose,  he  kept  backing  away  from 
him,  but  the  prisoner's  witnesses  state  the  contrary  of  this,  and 
say  that  the  deceased  was  the  assailant  in  the  whole  contest,  and 
that  the  pick  was  used  by  the  prisoner  by  pushing  the  deceased 
back  with  the  butt  of  the  handle,  except,  as  Mr.  Scott  testifies 
after  the  deceased  had  repeatedly  kicked  the  prisoner  when  he 
seemed  to  be  endeavoring  to  avoid  further  contest  by  returning 
to  his  store,  and  only  then  he  turned  around  and  struck  him  with 
the  pick  on  the  head. 

With  this  concise,  and  I  hope  sufficient  reference  to  the  facts 
testified  to  before  you — for  they  are  all  fresh  in  your  mind  and 
need  no  rehearsal  by  me,  I  shall  proceed  to  point  out  to  you  the  law 
in  cases  of  homicide,  and  leave  you  to  apply  such  of  it  as  has 
relevancy  to  the  facts  which  you  may  deem  sufficiently  proved, 
and  thus  make  up  your  verdict.  I  shall  treat  of  that  law  in  the 
inverse  order  of  the  instructions  prayed  for  by  the  Attorney 
General,  because  I  think  it  is  capable  of  greater  simplicity  of 
exposition,  in  this  case,  in  that  way. 

Every  killing  by  one  man  of  another  is  homicide.  It  is 
criminal  or  not,  according  to  circumstances.  There  are  some 
homicides,  which  are  justifiable,  others  excusable,  and  others 
which  are  neither,  but  are  felonious  and  punishable  according 


STATE   V.   PEG.  103 

to  their  quality.  With  the  justifiable  homicides  we  have  nothing 
to  do  in  this  case  and  therefore  I  shall  say  nothing  about  them. 
I  shall  deal  with  felonious  homicides,  and  with  those  excusable 
on  the  ground  of  self-defence. 

Felonious  homicides  are  murder  and  manslaughter.  They 
again  are  divided  into  such  as  are  malicious  and  those  which  are 
not.  Malice  is  of  the  very  essence  of  murder,  and  therefore  no 
homicide  is  murder  unless  it  is  committed  maliciously;  but  man- 
slaughters are  not  malicious  crimes;  and  that  only  is  what  distin- 
guishes them  from  murders.  Originally  only  one  class  of  murders 
was  known  to  our  law.  But  the  Legislature  by  the  Code  of  1852, 
divided  the  crime  of  murder  into  two  classes,  describing  one  of 
them  and  calling  it  murder  of  the  first  degree,  and  classing  all 
others  as  murder  of  the  second  degree.  Murder  itself  (which  in- 
cludes both  degrees)  is  the  unlawful  and  felonious  killing  by  one 
man  of  another  with  malice  aforethought — which  means  malice 
preconceived.  That  is  engendered  before  the  act  done.  If  that 
malice  be  express,  then  the  offence  is  murder  of  the  first  degree; 
if  it  be  not  express,  but  is  implied  by  law  from  the  nature  of  the 
act  done,  it  is  murder  of  the  second  degree.  Express  malice 
exists  where  one,  with  sedate  and  deliberate  mind  and  formed 
design,  kills  another.  This  state  of  mind  and  purpose  are  usually 
shown  by  the  deliberate  selection  and  use  of  a  deadly  weapon 
knowing  it  to  be  such,  a  preconcerted  hostile  meeting  whether  in 
a  regular  duel,  or  street  fight — mutually  agreed  upon,  or  notified 
and  threatened  by  the  prisoner,  privily  lying  in  wait,  a  previous 
quarrel  or  grudge,  the  preparation  of  poison,  or  other  means  of 
doing  great  bodily  harm,  or  the  like.  Malice  implied  in  law  is  an 
inference  or  conclusion  of  law  upon  the  facts  found  by  the  jury, 
and  among  these  the  actual  intention  of  the  prisoner  becomes 
an  important  fact;  for  though  he  may  not  have  intended  to  take 
away  life,  or  to  do  any  personal  harm,  yet  he  may  have  been 
engaged  in  some  other  felonious  or  unlawful  act  from  which  the 
law  raises  the  presumption  of  malice.  As  if  one  attempts  to  kill 
or  maim  A,  and  in  the  attempt  by  accident  kills  B,  a  dear 
friend,  or  child;  or  if  in  a  riot  or  street  fight,  one  of  the  parties 
accidently  kills  a  third  person  who  interfered  to  part  the  com- 
batants and  preserve  the  peace — the  law  implies  malice,  and  the 
slayer  is  guilty  of  murder.  Other  examples  are  given  in  the 


104  NATURE  AND  ELEMENTS. 

books;  but  it  is  sufficient  to  say,  that  all  malicious  homicides 
other  than  those  committed  with  express  malice  aforethought, 
are  murders  of  the  second  degree.  The  legal  definition  of  malice 
is — that  it  is  a  general  malignity  and  recklessness  of  the  lives  and 
persons  of  individuals  which  proceed  from  a  heart  void  of  a  just 
sense  of  social  duty  and  fatally  bent  on  mischief.  And  wherever 
the  fatal  act  is  committed  deliberately  or  without  adequate 
provocation,  the  law  presumes  that  it  was  done  in  malice;  and  it 
behooves  the  prisoner  to  show  from  evidence,  or  by  inference 
from  the  circumstances  of  the  case,  that  the  offence  is  of  a  miti- 
gated character  and  does  not  amount  to  murder.  I  have  already 
shown  to  you  how  express  malice  is  shown;  and  have  stated  that 
implied  malice  appears  otherwise. 

Manslaughter,  as  I  have  said,  is  not  a  malicious  crime.  It 
usually  grows  out  of  a  sudden  contest,  or  affray,  between  parties 
mutually  contending,  and  where  one  in  the  heat  of  blood  slays 
his  adversary.  If  the  fatal  stroke  be  with  a  deadly  weapon,  the 
homicide  will  be  murder,  if  it  appear  that  the  slayer  provided 
himself  with  it  beforehand  to  be  used  in  the  encounter.  All 
homicides  with  a  deadly  weapon,  or  an  instrument  likely  to  pro- 
duce death  are  presumed  in  law  to  be  malicious;  to  save  them 
from  that  inference,  the  prisoner  must  make  it  appear  to  the 
satisfaction  of  the  jury,  that  his  possession  of  such  weapon  or  in- 
strument was  not  a  preparatory  one  for  the  conflict. 

The  law  of  self-defence  is  this — that  when  one  is  suddenly  as- 
sailed by  another  in  such  a  manner  as  to  endanger  his  life,  or  to 
do  him  some  great  bodily  harm,  and  he  cannot  escape  the  fury 
of  his  assailant  otherwise  than  by  taking  his  life,  he  may  kill 
him.  But  before  he  can  do  this,  he  must  do  all  he  can  to  escape 
from  the  fury  of  his  assailant,  and  may  never  take  his  life,  ex- 
cept in  the  last  extremity  and  where  no  other  means  for  his 
safety  are  available  to  him.  And  the  same  is  true,  where  two 
persons  are  engaged  in  a  fight  and  one  of  them  endeavor  to  with- 
draw from  it  and  do  what  he  can  for  that  purpose,  and  yet  he 
cannot  do  so  by  reason  of  the  hostile  opposition  of  his  adversary, 
and  to  continue  it  would  result  in  death  or  great  bodily  harm  to 
him,  he  may  take  the  life  of  such  adversary  to  preserve  his  own, 
or  protect  his  person  from  such  harm. 

I  have  now  given  you,  gentlemen,  all  the  law  that  we  think 


STATE  V.   PEG.  105 

will  aid  you  in  deciding  this  case;  and  in  doing  so  have  answered 
affirmatively  the  main  points,  or  prayers,  of  the  Attorney  Gen- 
eral. In  fact  there  is  in  this  case  no  controversy  as  to  the  law. 
With  respect  to  the  defence  suggested  by  the  learned  counsel 
for  the  prisoner,  that  there  is  ground  for  the  theory  that  the 
deceased  accidentally  fell  upon  the  prisoner's  weapon,  and  was 
not  struck  by  him  with  it,  we  think  it  only  necessary  to  say — that 
we  have  heard  no  fact  proved  that  points  to  such  conclusion.  But 
if  such  was  proved,  it  cannot  avail  the  prisoner  unless  he  was 
at  the  time  using  it  lawfully  in  self-defence:  if  used  otherwise, 
it  would  be  an  unlawful  use,  and  subject  him  to  the  penal  conse- 
quences of  manslaughter  at  least. 

The  case  is  now  submitted  to  you,  gentlemen,  upon  the  law, 
as  we  have  delivered  it  to  you,  and  the  facts  related  by  the  wit- 
nesses, and  we  have  confidence  you  will  well  consider  it,  and  that 
your  verdict  will  be  entirely  satisfactory  to  your  consciences.  It 
remains  but  to  add  the  instructions  asked  for  by  the  prisoner's 
counsel — that  the  prisoner  cannot  be  convicted  of  any  crime, 
unless  you  are  satisfied  by  the  proof  in  the  case,  beyond  a  reason- 
able doubt,  that  he  is  guilty  of  it. 

A  word  more — in  all  indictments  for  murder  of  the  first 
degree,  as  that  in  this  case  is,  the  jury  may  convict  of  that  crime, 
or  of  murder  in  the  second  degree,  or  of  manslaughter,  as  the 
evidence  may  warrant  a  conviction  of  a  particular  offence.  If  it 
do  not  so  warrant,  they  are  bound  to  acquit  entirely. 

Verdict,  not  guilty. 

Campbell  v.  State,  16  111.  17;  Erwin  v.  State,  29  Ohio  St.  186;  Creek  v. 
State,  24  Ind.  151;  People  v.  Lynch,  35  Pac.  860;  Jones  v.  State,  26  Tex. 
App.  1;  Floyd  v.  State,  36  Ga.  91;  Meurer  v.  State,  129  Ind.  587;  Long  v. 
State,  52  Miss.  23;  Silvus  v.  State,  22  Ohio  St.  90;  Enright  v.  People,  155 
111.  32;  Hathaway  v.  State,  32  Fla.  56;  State  v.  Sortor,  52  Kas.  531; 
Downey  v.  State,  26  S.  W.  627;  State  v.  Kirkman,  59  N.  W.  24;  In  re 
Neagle,  14  Sawyer  232;  Lovett  v.  State,  17  L.  B.  A.  705;  Wilson  v.  State, 
17  L.  R.  A.  654;  Smith  v.  State,  25  Fla.  517;  Pinder  v.  State,  27  Fla.  370; 
N.  T.  Penal  Code,  Sec.  26;  Clark,  p.  149;  Bishop  I.,  864-874;  Wharton, 
95-103;  Hawley  &  McGregor,  131;  The  Penal  Code  of  Pa.;  Shields,  vol. 
I.,  387,  392,  399,  403,  404,  406,  416,  418,  436. 


106  NATURE  AND  ELEMENTS. 

(b)  Of  Property. 
(I1)  In  General. 

One  may  defend  his  property  in  any  reasonable  and  neces- 
sary manner  short  of  taking  life. 

STOREY  v.  STATE. 

Supreme  Court  of  Alabama,  1882. 
71  Ala.  329. 

SOMERVILLE,  J.  The  judgment  of  conviction  in  this  case  must 
be  reversed  because  of  several  errors  apparent  in  the  record. 

It  is  one  of  the  fundamental  principles  of  the  law  of  homicide, 
whenever  the  doctrine  of  self-defence  arises,  that  the  accused 
himself  must  always  be  reasonably  free  from  fault,  in  having 
provoked  or  brought  on  the  difficulty  in  which  the  killing  was 
perpetrated.  If  the  accused  was  the  aggressor,  it  is  well  settled 
that  he  can  not  be  heard  to  urge,  in  his  own  justification,  a  neces- 
sity for  the  killing  which  was  produced  by  his  own  wrongful 
act. — Cross'  Case,  63  Ala.  40;  Kimbrough's  Case,  62  Ala.  248; 
Whart.  on  Horn.  Sec.  535.  Or,  as  sometimes  stated,  no  one  can 
avail  himself  of  a  necessity  which  he  has  knowingly  and  willfully 
brought  on  himself. — Leonard's  Case,  66  Ala.  461;  1  Bish.  Cr. 
Law,  Sec.  844.  Many  of  the  numerous  charges  requested  by  the 
prisoner,  as  will  readily  appear  from  inspection,  were  properly 
refused  on  the  ground  that  they  ignored  this  preliminary  prin- 
ciple. 

It  is  another  important  rule  in  such  cases,  that  the  right  of 
self-defence  does  not  arise  until  the  defendant  has  availed  him- 
self of  all  proper  means  in  his  power  to  decline  the  combat  by 
retreat,  provided  there  be  open  to  him  a  safe  mode  of  escape. 
Ingram's  Case,  67  Ala.  67;  Eiland's  Case,  52  Ala.  322.  Such, 
at  least,  is  the  settled  principle  governing  cases  of  mere  assault, 
or  of  mutual  combat,  where  the  attacking  party,  as  expressed  by 
Mr.  Bishop,  has  not  "the  purpose  of  murder  in  his  heart." — 1 


STOREY   V.   STATE.  107 

Bish.  Or.  Law,  Sec.  850.  Where,  however,  the  assault  is  mani- 
festly felonious  in  its  purpose  and  forcible  in  its  nature,  as  in 
murder,  rape,  robbery,  burglary,  and  the  like,  as  distinguished 
from  secret  felonies,  like  mere  larceny  from  the  person,  or  the 
picking  of  one's  pocket,  the  party  attacked  is  under  no  obligation 
to  retreat.  But  he  may,  if  necessary,  stand  his  ground  and  kill 
his  adversary. — Cases  on  Self-Defence  (Horr.  &  Thomp.),  pp. 
33,  133,  139;  Selfridge's  Case,  Ib.  1;  State  v.  Shippey,  10  Minn. 
223;  1  Bish.  Cr.  Law,  Sec.  850;  Aaron  v.  The  State,  31  Ga.  167; 
1  East  P.  C.  271.  Mr.  Bishop  observes,  that  "it  is  the  same  where 
the  attack  is  with  a  deadly  weapon;  for,  in  this  case,  the  person 
attacked  may  well  assume  that  the  other  intends  murder,  whether 
he  does  in  fact  or  not." — 1  Bish.  Cr.  L.  Sec.  850.  This  observa- 
tion, however,  must  be  limited  to  those  cases  where  the  attack 
with  the  deadly  weapon  is  made  under  such  circumstances  or  sur- 
roundings as  to  reasonably  justify  the  conclusion  that  the  party 
assailed,  by  retreating,  will  apparently  put  himself  at  a  disad- 
vantage; for,  as  Mr.  Blackstone  has  it,  he  should  retreat  "  as  far 
as  he  conveniently  and  safely  can  to  avoid  the  violence  of  the 
assault,  before  he  turns  on  his  assailant." — 4  Com.  184;  Whart. 
on  Horn.  Sec.  485;  Selfridge's  Case,  supra;  Cases  on  Self- 
Defence,  64,  121,  130.  Mr.  East  states  the  doctrine  as  follows: 
"A  man  may  repel  force  by  force  in  defence  of  his  person,  habita- 
tion, or  property,  against  one  who  manifestly  intends,  or  en- 
deavors, by  violence  or  surprise,  to  commit  a  known  felony,  such 
as  murder,  rape,  robbery,  arson,  burglary,  and  the  like,  upon 
either.  In  these  cases  he  is  not  obliged  to  retreat,  but  may  pursue 
his  adversary  until  he  has  secured  himself  from  all  danger;  and 
if  he  kill  him  in  so  doing,  it  is  called  justifiable  self-defence." — 
1  East  P.  C.  271. 

Of  course,  where  one  is  attacked  in  his  own  dwelling-house, 
he  is  never  required  to  retreat.  His  "house  is  his  castle,"  and  the 
law  permits  him  to  protect  its  sanctity  from  every  unlawful  in- 
vasion.— Whart.  on  Horn.  Sec.  541;  Pond's  Case,  8  Mich.  150; 
1  Russ.  Cr.  544. 

These  principles  ore  of  easy  application  to  the  evidence,  and 
some  of  the  scharges  were  misleading  in  failing  to  clearly  recog- 
nize them. 

The  law  requires  that   the  circumstances   surrounding   the 


108  NATURE  AND  ELEMENTS. 

prisoner  should  have  created  in  his  mind  a  reasonable  belief  of 
his  own  imminent  peril,  and  of  an  urgent  necessity  to  take  the 
life  of  his  assailant,  as  the  only  apparent  alternative  of  saving 
his  own  life,  or  else  of  preventing  the  infliction  of  great  bodily 
harm.  Such  peril  must  be,  to  all  appearances,  present  and  im- 
mediate, and  the  belief  in  the  necessity  of  killing  must  be  well 
founded  and  honestly  entertained;  and  of  these  facts  the  jury 
must  be  the  judge. — Carroll's  Case,  23  Ala.  28;  Oliver's  Case, 
17  Ala.  587;  Ex  parte  Brown,  65  Ala.  446;  Cases  on  Self- 
Defence  (Horr.  &  Thomp.),  345,  349,  476,  820;  Whart.  on 
Horn.  Sec.  517  et  seq.;  Mitchell's  Case,  60  Ala.  26;  Robert's 
Case,  68  Ala.  156. 

The  charges  given  by  the  court  fully  recognize  this  principle. 

The  record  contains  some  evidence  remotely  tending  to  show 
that  the  prisoner  was  in  pursuit  of  the  deceased  for  the  purpose 
of  recapturing  a  horse,  which  the  deceased  had  either  stolen,  ac- 
quired by  fraud,  or  else  unlawfully  converted  to  his  own  use. 

If  the  property  was  merely  converted,  or  taken  possession  of 
in  such  manner  as  to  constitute  a  civil  trespass,  without  any 
criminal  intent,  it  would  not  be  lawful  to  recapture  it  by  any 
exercise  of  force  which  would  amount  even  to  a  breach  of  the 
peace,  much  less  a  felonious  homicide. — Street  v.  Sinclair,  ante, 
p.  110;  Burns  v.  Campbell,  ante,  p.  271. 

Taking  the  hypothesis  that  there  was  a  larceny  of  the  horse, 
it  becomes  important  to  inquire  what  would  then  be  the  rule. 
The  larceny  of  a  horse  is  a  felony  in  this  State,  being  specially 
made  so  by  statute,  without  regard  to  the  value  of  the  animal 
stolen. — Code,  1876,  Sec.  4358.  The  fifth  charge  requested  by 
the  defendant  is  an  assertion  of  the  proposition,  that  if  the  horse 
was  feloniously  taken  and  carried  away  by  the  deceased,  and 
there  was  an  apparent  necessity  for  killing  deceased  in  order  to 
recover  the  property  and  prevent  the  consummation  of  the 
felony,  the  homicide  would  be  justifiable.  The  question  is  thus 
presented,  as  to  the  circumstances  under  which  one  can  kill  in 
order  to  prevent  the  perpetration  of  a  larceny  which  is  made  a 
felony  by  statute — a  subject  full  of  difficulties  and  conflicting 
expressions  of  opinion  from  the  very  earliest  history  of  our 
common  law  jurisprudence.  The  broad  doctrine  intimated  by  Lord 
Coke  was,  that  a  felon  may  be  killed  to  prevent  the  commission 


STOREY   V.   STATE.  109 

of  a  felony  without  any  inevitable  cause,  or  as  a  matter  of  mere 
choice  with  the  slayer. — 3  Inst.  56.  If  such  a  rule  ever  prevailed, 
it  was  at  a  very  early  day,  before  the  dawn  of  a  milder  civilization, 
with  its  wiser  system  of  more  benignant  laws;  for  Blackstone 
states  the  principle  to  be,  that  "where  a  crime,  in  itself  capital, 
is  endeavored  to  be  committed  by  force,  it  is  lawful  to  repel  that 
force  by  the  death  of  the  party  attempting." — 4  Com.  181.  The 
reason  he  assigns  is,  that  the  law  is  too  tender  of  the  public  peace 
and  too  careful  of  the  lives  of  the  subjects  to  "suffer,  with  im- 
punity, any  crime  to  be  prevented  by  death,  unless  the  same,  if 
committed,  would  also  be  punished  by  death."  It  must  be  ad- 
mitted that  there  was  far  more  reason  in  this  rule  than  the  one 
intimated  by  Lord  Coke,  although  all  felonies  at  common  law 
were  punishable  by  death,  and  the  person  killing,  in  such  cases, 
would  seem  to  be  but  the  executioner  of  the  law.  Both  of  these 
views,  however,  have  been  repudiated  by  the  later  authorities, 
each  being  to  some  extent  materially  modified.  All  admit  that 
the  killing  can  not  be  done  from  mere  choice;  and  it  is  none  the 
less  certain  that  the  felony  need  not  be  a  capital  one  to  come 
within  the  scope  of  the  rule. — Gray  v.  Combs,  7  J.  J.  Marsh.  47  8; 
Cases  on  Self -Defence  (Horr.  &  Thomp.),  725,  867;  Oliver  v. 
The  State,  17  Ala.  587;  Carroll  v.  The  State,  23  Ala.  28. 

We  find  it  often  stated,  in  general  terms,  both  by  text  writers 
and  in  many  well  considered  cases,  that  one  may,  as  Mr.  Bishop 
expresses  it,  "oppose  another  who  is  attempting  to  perpetrate  any 
felony,  to  the  extinguishment,  if  need  be,  of  the  felon's  exist- 
ence."—! Bish.  Cr.  Law,  Sees.  849-50;  The  State  v.  Rutherford, 
1  Hawks,  457.  It  is  observed  by  Mr.  Bishop,  who  is  an  advocate 
of  this  theory,  that  "the  practical  carrying  out  of  the  right  thus 
conceded,  is,  in  some  circumstances,  dangerous,  and  wherever 
admitted,  it  should  be  carefully  guarded." — iBish.  Cr.  Law, 
Sec.  855. 

After  a  careful  consideration  of  the  subject  we  are  fully  per- 
suaded that  the  rule,  as  thus  stated,  is  neither  sound  in  principle, 
nor  is  it  supported  by  the  weight  of  modern  authority.  The  safer 
view  is  that  taken  by  Mr.  Wharton,  that  the  rule  does  not  au- 
thorize the  killing  of  persons  attempting  secret  felonies,  not 
accompanied  by  force. — Whart.  on  Horn.  Sec.  539.  Mr.  Green- 
leaf  confines  it  to  "the  prevention  of  any  atrocious  crime  at- 


110  NATURE  AND  ELEMENTS. 

tempted  to  be  committed  by  force;  such  as  murder,  robbery, 
house-breaking  in  the  night-time,  rape,  mayhem,  or  any  other 
act  of  felony  against  the  person"  (3  Greenl.  Ev.  115);  and  such 
seems  to  be  the  general  expression  of  the  common  law  text 
writers.—!  Russ.  Cr.  665-70;  4  Black.  Com.  178-80;  Whart. 
Amer.  Cr.  Law,  298-403;  1  East  P.  C.  271;  1  Hale,  P.  C.  488; 
Foster,  274.  It  is  said  by  the  authors  of  Cases  on  Self-Defence, 
that  a  killing  which  "appears  to  be  reasonably  necessary  to  pre- 
vent a  forcible  and  atrocious  felony  against  property,  is  justifiable 
homicide."  "This  rule,"  it  is  added,  "the  common  law  writers 
do  not  extend  to  secret  felonies,  or  felonies  not  accompanied  with 
force,"  although  no  modern  case  can  be  found  expressly  so  ad- 
judging. They  further  add:  "It  is  pretty  clear  that  the  right 
to  kill  in  defence  of  property  does  not  extend  to  cases  of  larceny, 
which  is  a  crime  of  a  secret  character,  although  the  cases  which 
illustrate  this  exception  are  generally  cases  of  theft  of  articles  of 
small  value." — Cases  on  Self-Defence  (Horr.  &  Thomp.),  901-2. 
This  was  settled  in  Reg.  v.  Murphy,  2  Crawf.  &  Dix  C.  C.  20, 
where  the  defendant  was  convicted  of  shooting  one  detected  in 
feloniously  carrying  away  fallen  timber  which  he  had  stolen 
from  the  premises  of  the  prosecutor,  the  shooting  being  done  very 
clearly  to  prevent  the  act,  which  was  admitted  to  be  a  felony. 
Doherty,  C.  J.,  said:  "I  can  not  allow  it  to  go  abroad  that  it  is 
lawful  to  fire  upon  a  person  committing  a  trespass  and  larceny; 
for  that  would  be  punishing,  perhaps  with  death,  offences  for 
which  the  law  has  provided  milder  penalties."  This  view  is  sup- 
ported by  the  following  cases:  State  v.  Vance,  17  Iowa,  144; 
McClelland  v.  Kay,  14  B.  Monroe,  106,  and  others  not  necessary 
to  be  cited.  See  Cases  on  Self-Defence,  p.  901,  note. 

There  is  no  decision  of  this  court,  within  our  knowledge, 
which  conflicts  with  these  views.  It  is  true  the  rule  has  been  ex- 
tended to  statutory  felonies,  as  well  as  felonies  at  common  law, 
which  is  doubtless  the  correct  doctrine,  but  the  cases  adjudged 
have  been  open  crimes  committed  by  force,  and  not  those  of  a 
secret  nature. — Oliver's  Case,  17  Ala.  587;  Carroll's  Case,  23 
Ala.  28;  Dill's  Case,  25  Ala.  15. 

In  Pond  v.  The  People,  8  Mich.  150,  after  endorsing  the  rule 
which  we  have  above  stated,  it  was  suggested  by  Campbell,  J., 
that  there  might  possibly  be  some  "exceptional  cases"  not  within 


STOREY   V.   STATE.  Ill 

its  influence,  a  proposition  from  which  we  are  not  prepared  to 
dissent.  And  again  in  Gray  v.  Combs,  7  J.  J.  Marsh.  478,  483, 
it  was  said  by  Nicholas,  <J.,  that  the  right  to  kill  in  order  to  pre- 
vent the  perpetration  of  crime  should  depend  "more  upon  the 
character  of  the  crime,  and  the  time  and  .manner  of  its  attempted 
perpetration,  than  upon  the  degree  of  punishment  attached  by 
law."  There  is  much  reason  in  this  view,  and  a  strong  case  migTit 
be  presented  of  one's  shooting  a  felon  to  prevent  the  asportation 
of  a  stolen  horse  in  the  night  time,  where  no  opportunity  is  af- 
forded to  recognize  the  thief,  or  obtain  speedy  redress  at  law. 
Both  the  Roman  and  Athenian  laws  made  this  distinction  in 
favor  of  preventing  the  perpetration  of  theft  by  night,  allowing, 
in  each  instance,  the  thief  to  be  killed  when  necessary,  if  taken 
in  the  act. — 4  Black.  Com.  180,  181. 

The  alleged  larceny  in  the  present  case,  if  it  occurred  at  all, 
was  in  the  open  daylight,  and  the  defendant  is  not  shown  to  have 
been  unable  to  obtain  his  redress  at  law.  Where  opportunity  is 
afforded  to  secure  the  punishment  of  the  offender  by  due  course 
of  law,  the  case  must  be  an  urgent  one  which  excuses  a  killing 
to  prevent  any  felony,  much  less  one  not  of  a  forcible  or  atro- 
cious nature. — Whart.  Horn.  Sees.  536-8.  "No  man,  under  the 
protection  of  the  law,"  says  Sir  Michael  Foster,  "is  to  be  the 
avenger  of  his  own  wrongs.  If  they  are  of  such  a  nature  for 
which  the  law  of  society  will  give  him  an  adequate  remedy, 
thither  he  ought  to  resort." — Foster,  296.  It  is  everywhere  set- 
tled that  the  law  will  not  justify  a  homicide  which  is  perpetrated 
in  resisting  a  mere  civil  trespass  upon  one's  premises  or  property, 
unaccompanied  by  force,  or  felonious  intent. — Carroll's  Case,  23 
Ala.  28;  Clark's  Man.  Cr.  Law,  Sees.  355-7;  Whart.  on  Horn. 
Sec.  540.  The  reason  is  that  the  preservation  of  human  life  is 
of  more  importance  than  the  protection  of  property.  The  law  may 
afford  ample  indemnity  for  the  loss  of  the  one,  while  it  utterly 
fails  to  do  so  for  the  other. 

The  rule  we  have  above  declared  is  the  safer  one,  because  it 
better  comports  with  the  public  tranquillity  and  the  peace  of 
society.  The  establishment  of  any  other  would  lead  to  disorderly 
breaches  of  the  peace  of  an  aggravated  nature,  and  therefore 
tend  greatly  to  cheapen  human  life.  This  is  especially  true  in 
view  of  our  legislative  policy  which  has  recently  brought  many 


112  NATURE  AND  ELEMENTS. 

crimes,  formerly  classed  and  punished  as  petit  larcenies  within 
the  class  of  statutory  felonies.  It  seems  settled  that  no  distinction 
can  be  made  between  statutory  and  common  law  felonies,  what- 
ever may  be  the  acknowledged  extent  of  the  rule.  Oliver's  Case, 
17  Ala.  587;  Cases  on  Self -Defence  901,  867;  Bish.  Stat.  Cr. 
Sec.  139.  The  stealing  of  a  hog,  a  sheep,  or  a  goat  is,  under  our 
statute,  a  felony,  without  regard  to  the  pecuniary  value  of  the 
animal.  So  would  be  the  larceny  of  a  single  ear  of  corn,  which 
is  "a  part  of  any  outstanding  crop." — Code,  Sec.  4358;  Acts 
1880-81,  p.  47.  It  would  be  shocking  to  the  good  order  of  gov- 
ernment to  have  it  proclaimed,  with  the  sanction  of  the  courts, 
that  one  may,  in  the  broad  daylight,  commit  a  willful  homicide 
in  order  to  prevent  the  larceny  of  an  ear  of  corn.  In  our  judg- 
ment the  fifth  charge,  requested  by  the  defendant,  was  properly 
refused. 

It  can  not  be  questioned,  however,  that  if  there  was  in  truth 
a  larceny  of  the  prisoner's  horse,  he,  or  any  other  private  person 
had  a  lawful  right  to  pursue  the  thief  for  the  purpose  of  arrest- 
ing him,  and  of  recapturing  the  stolen  property. — Code,  Sees. 
4668-70;  1  Bish.  Cr.  Proc.  Sees.  164-5.  He  is  not  required,  in 
such  case,  to  inform  the  party  fleeing  of  his  purpose  to  arrest 
him,  as  in  ordinary  cases. — Code,  Sec.  4669.  And  he  could,  if 
resisted,  repel  force  with  force,  and  need  not  give  back,  or  re- 
treat. If,imder  such  circumstances,  the  party  making  resistance  is 
unavoidably  killed,  the  homicide  would  be  justifiable. — 2  Bish. 
Cr.  Law,  Sec.  647;  1  Russ.  Cr.  665;  State  v.  Roane,  2  Dev.  58. 
If  the  prisoner's  purpose  was  honestly  to  make  a  pursuit,  he  would 
not  for  this  reason  be  chargeable  with  the  imputation  of  having 
wrongfully  brought  on  the  difficulty;  but  the  law  would  not  per- 
mit him  to  resort  to  the  pretence  of  pursuit,  as  a  mere  colorable 
device,  beneath  which  to  perpetrate  crime. 

The  character  of  the  deceased  was  clearly  a  vital  issue,  as  it  is 
in  all  cases  where  an  issue  of  self-defence  properly  arises.  It  was 
relevant  as  having  a  tendency  to  justify  the  belief  in  the  pris- 
oner's mind  of  a  peril  enhanced  by  the  dangerous  character  of  his 
assailant.  A  ferocious,  vindictive  and  turbulent  man  is  reputed 
to  be  such,  because  of  the  frequency  with  which  he  executes  his 
revenge,  or  gives  expression,  by  constant  overt  acts,  to  his  ani- 
mosity. A  demonstration  on  his  part,  especially  when  preceded 


WRIGHT  V.   COMMONWEALTH.  113 

by  recent  and  violent  threats,  may  create  reasonable  apprehension 
of  danger,  when  the  same  conduct  on  the  part  of  a  notoriously 
peaceable  or  timid  man  would  be  regarded  as  entirely  harmless. 
It  is  quite  true  that  no  one  can,  without  lawful  excuse,  kill  a 
blood-thirsty  ruffian  any  more  than  he  can  the  most  orderly 
citizen;  but  it  is  plain  that  an  overt  act  done  by  the  former  may 
reasonably  justify  prompter  action,  as  a  necessary  means  of  self- 
preservation,  than  if  done  by  the  latter.  It  may  sometimes  be  as 
material  to  prove  that  a  man,  who  assailed  you,  was  a  Thug  in 
character,  as  that  he  was  a  Thug  in  reality. — Whart.  on  Horn.  Sec. 
606;  Robert's  Case,  68  Ala.  156;  Pritchett's  Case,  22  Ala.  39; 
Dupree  v.  State,  33  Ala.  38;  Franklin's  Case,  29  Ala.  14;  Stokes' 
Case,  53  K  Y.  164;  Colton's  Case,  31  Miss.  504;  Cases  Self- 
Defence  (Horr.  &  Thomp.),  pp.  486,  667,  641,  635,  927,  539. 

There  are  some  other  questions  raised  in  the  record  which  we 
do  not  think  necessary  to  discuss.  The  judgment  of  the  Circuit 
Court  must  be  reversed,  and  the  cause  remanded  for  a  new  trial. 
In  the  meanwhile,  the  prisoner  will  be  retained  in  custody  until 
discharged  by  due  process  of  law. 

Com.  v.  McLaughlin,  163  Pa.  St.  651;  State  v.  Thompson,  9  la.  188; 
State  v.  Kennedy,  20  la.  569;  State  v.  Benham,  23  la.  154;  Filkins  v.  Peo- 
ple, 69  N.  Y.  101;  State  v.  Oilman,  69  Me.  169;  State  v.  Moore,  31  Conn. 
479;  Com.  v.  Clark,  2  Met.  (Mass.)  23;  Com.  v.  Kennard,  8  Pick.  (Mass.) 
135;  Souther  v.  State,  18  Tex.  App.  352;  Anderson  &  Austin  v.  State,  6 
Baxt.  608;  Roach  v.  State,  77  111.  25;  Clark,  p.  144;  Bishop  I.,  Sec.  536- 
875,  876;  Wharton,  Sec.  100;  Hawley  &  McGregor,  p.  135. 


(21)  Of  Habitation. 

One  may  defend  his  habitation  with  such  means  as  is 
reasonable  and  necessary  even  to  the  extent  of  taking  life. 

WEIGHT  v.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky,  1887. 
85  Ky.  124;  2  S.  W.  904. 

JUDGE  LEWIS  delivered  the  opinion  of  the  court. 
Appellant  having,  under  a  joint  indictment  against  him  and 
his  brother,  Elijah  Wright,  for  the  murder  of  William  Wright, 
8 


114  NATURE  AMD   ELEMENTS. 

been  convicted  of  manslaughter  and  sentenced  to  the  peniten- 
tiary for  twenty-one  years,  appeals. 

The  homicide  occurred  between  nine  and  ten  o'clock  at  night, 
on  the  premises  of  appellant,  near  his  dwelling-house,  where  the 
deceased,  who  was  his  uncle,  had  gone,  accompanied  by  ten 
others,  all  but  four  being  relatives  and  two  of  them  brothers 
of  appellant.  It  appears  that  all  the  party,  except  the 
deceased  and  one  other,  was  armed  with  guns  or  pistols,  and 
by  agreement,  when  near  the  house,  divided,  two  or  three  going 
to  the  back  and  the  others  to  the  front  door;  and  their  approach 
was  so  noisy  and  demonstrative  as  to  awaken  those  inside,  all  of 
whom  had  gone  to  bed.  One  of  those  who  went  to  the  back  door 
was  a  brother  of  appellant  called  "Black  Hawk,"  who  said  in  a 
loud  angry  tone,  "Damn  you,  open  the  door,"  adding  signi- 
ficantly, "Black  Hawk  is  here  now."  The  reply  of  the  appellant 
was,  "Damn  you,  open  the  door  yourself  if  you  want  it  opened." 
And  upon  the  same  response  being  given  to  the  second  demand 
made  with  a  threat  to  kick  the  door  down,  it  was  kicked  down, 
the  shutter  falling  inside  upon  a  man  named  Johnson,  who  was 
sleeping  on  the  floor.  The  inmates  of  the  house  at  the  time  were 
appellant,  his  wife,  five  children,  Elijah  Wright,  who  was  there 
for  the  night,  and  Johnson.  When  the  door  was  thus  forced  open 
appellant  was  confronted  by  his  brother,  "Black  Hawk,"  with  a 
gun  presented,  and  Elijah  by  another  called  Lunce  Wright,  like- 
wise armed. 

The  evidence  tends  to  show  the  first  shot  was  fired  by  Elijah 
at  Lunce  Wright,  the  shooting  between  the  two  beginning  soon 
after  the  door  was  broken.  But  it  clearly  appears  that  appellant 
did  not  attempt  to  shoot  until  two  or  three  shots  had  been  fired 
in  his  house,  one  of  them  being  aimed  directly  at  him  by  "Black 
Hawk,"  whom  he  then  shot  at  and  wounded.  As  soon  as  the  lat- 
ter was  shot  he  called  on  the  crowd  to  rush  up,  whereupon  ap- 
pellant cried  out  for  God's  sake  to  stop  firing  into  his  house,  as 
they  had  already  killed  one  of  his  children.  This,  however, 
turned  out  not  to  be  true,  though  amidst  the  noise  and  confusion 
caused  by  the  firing  and  screaming  and  crying  of  his  wife  and 
children,  appellant  might  have  reasonably  supposed  one  or  more 
of  them  was  killed.  Perdue,  one  of  the  crowd,  then  called  on 
them  to  fall  back  and  give  the  woman  and  children  a  chance  to  get 


WRIGHT  V.   COMMONWEALTH.  115 

out,  and  the  party  did  then  fall  back  toward  the  corn-crib,  forty 
or  fifty  feet,  where  they  stopped,  still  facing  the  house.  Soon 
after  that,  appellant  having  been  told  by  Elijah  that  the  party 
outside  were  reloading  their  guns,  and  directed  to  load  his  quick, 
went  outside  the  house  in  his  night  clothes,  and  from  the 
chimney  corner  fired  the  shot  that  killed  William  Wright. 

The  proof  is  that  it  was  a  moonlight  night,  the  snow  was  on 
the  ground,  and  that  appellant,  Wright,  had  recognized  the 
deceased  at  the  time  he  fired.  On  the  other  hand,  while  it  is  only 
an  inference,  though  a  strong  one,  that  any  others  of  the  party 
besides  the  two  at  the  back  door,  fired  into  the  house  before  they 
fell  back  to  the  corn-crib,  it  is  proved  that  about  the  time  appel- 
lant shot  from  the  chimney  corner,  firing  was  going  on,  as  the 
witnesses  say,  in  all  directions,  at  least  two  shots  being  in  the 
direction  of  the  house.  One  of  thesje  was  fired  by  a  person  near 
the  deceased,  in  the  language  of  a  witness,  almost  instantaneous 
with  the  one  by  appellant,  the  load  striking  the  house  near  to 
him.  The  other  was  fired  just  before,  from  the  same  vicinity, 
by  "Black  Hawk,"  and  by  it  Andrew  Wright,  one  of  the  party 
coming  from  the  house  toward  the  corn-crib,  was  killed.  That 
shot  was  evidently  fired  under  the  belief  the  person  shot  at  was 
either  appellant  or  Elijah  Wright,  for  "Black  Hawk"  cried  out 
with  an  oath,  when  Andrew  Wright  fell,  that  he  had  got  one  of 
them. 

It  appears  that  soon  after  the  crowd  fell  back  Elijah  Wright 
fled  from  the  house;  but  the  precise  time  he  left  does  not  appear, 
though  he  fired  and  was  fired  at  as  he  retreated,  one  of  the  persons 
firing  at  him  being  a  justice  of  the  peace. 

It  may  be  inferred  that  the  ostensible  purpose  of  the  crowd 
in  going  to  the  house  of  appellant  was  to  arrest  Elijah  Wright 
upon  a  charge  of  breach  of  the  peace.  One  of  them,  the  justice 
of  the  peace,  testified  he  issued  a  warrant  against  him  late  in  the 
evening  of  the  day.  of  the  homicide,  but  the  court  excluded  that 
testimony.  So  the  only  evidence  before  the  jury  that  a  warrant 
was  issued  at  all,  was  by  a  witness,  who  stated  he  heard  appellant 
and  Elijah  Wright  talking  about  a  warrant,  and  that  the  former 
told  the  latter  if  he  would  go  home  with  him  and  stay  all  night 
they  would  not  arrest  him.  And  it  is  proper  to  state  in  this  con- 
nection that  the  testimony  of  that  witness  tended  to  show 


116  NATURE   AND    ELEMENTS. 

appellant  intended  to  resist  the  arrest  of  his  brother,  if  attempted 
at  his  house.  But  there  was  no  officer  except  the  justice  of  the 
peace  in  the  party  when  they  went  to  the  house  of  appellant,  and 
the  only  pretext  of  authority  of  any  one  of  them  to  make  an 
arrest,  was  the  attempt  of  the  justice  of  the  peace  to  deputize 
Perdue,  a  private  citizen,  to  do  so. 

There  is  no  evidence  that  any  one  of  the  party  informed 
Elijah  Wright,  when  they  reached  the  house,  they  came  to  arrest 
him,  or  that  a  warrant  had  been  issued  for  his  arrest;  and  it  does 
not  appear  that  either  the  justice  of  the  peace  or  Perdue  spoke 
to  appellant  or  Elijah  Wright  at  any  time  that  night.  The  only 
intimation  given  to  them  that  the  object  of  the  crowd  in  going 
there  was  to  make  the  arrest,  was  by  "Black  Hawk,"  who  said, 
when  he  went  to  the  back  door,  "Consider  yourselves  under  ar- 
rest," accompanied  with  the  remark,  "Damn  you,  open  the 
door;"  and  only  one  witness,  he  who  was  aiding  in  breaking  the 
door,  testifies  to  that  fact. 

It  is  proper  to  state,  as  illustrative  of  the  feelings  and  motives 
of  some  of  the  party,  that  the  justice  of  the  peace  testifies  his  ob- 
ject in  going  to  the  house  of  appellant  was  to  protect  him  and 
Elijah  from  being  hurt;  yet  he  admits  he  fired  at  the  latter  as  he 
was  fleeing  from  the  house.  It  was  also  proved  that  "Black 
Hawk"  said,  at  the  time  the  warrant  was  issued,  that  some  one 
was  going  to  be  killed,  and  he  did  not  like  Elijah.  Yet  he  was 
the  one  selected  or  permitted  to  demand  admittance  to  the  house. 

There  seems  to  have  been  some  disturbance  of  friendship  be- 
tween appellant  and  William  Wright,  though  there  is  no  proof 
of  a  direct  threat  by  either  to  do  the  other  personal  injury. 

It  is,  however,  proved  that  Elijah  Wright  had  made  threats 
against  two  or  three  persons,  including  the  deceased,  on  account 
of  a  law-suit. 

A  somewhat  extended  statement  of  the  facts  in  this  case  has 
been  made,  because  necessary  to  determine  the  various  errors 
complained  of. 

1.  We  think  the  court  erred  in  refusing  to  permit  Elijah 
Wright  to  testify  in  behalf  of  appellant. 

There  is  a  conspiracy  charged  in  the  indictment  to  murder  the 
deceased;  but  the  record  contains  no  evidence  whatever  to  sus- 
tain the  charge.  No  witness  states  any  fact  from  which  it  can 


WRIGHT  V.   COMMONWEALTH.  117 

be  inferred  that,  previous  to  the  attack  by  the  party  of  which 
the  deceased  was  a  voluntary  member,  there  was  any  concert  be- 
tween appellant  and  Elijah  Wright  to  take  his  life,  either  as  the 
means  or  end  of  an  unlawful  design.  And  there  being  no 
evidence  on  the  trial  to  support  the  charge  of  conspiracy,  appel- 
lant was  entitled  to  the  testimony  of  Elijah  Wright.  And,  for 
the  same  reason,  evidence  of  previous  threats  by  the  latter  was 
incompetent  in  the  trial  of  appellant. 

2.  Instruction  4  is  improper,  because  the  court  had  no  right 
to  direct  attention  to  the  interest  of  witnesses  in  the  result  or 
character  of  statements  made  by  them,  the  jury  being  the  sole 
judges  of  the  weight  of  the  evidence  and  of  the  credibility  of  the 
witnesses. 

3.  By  instruction  6,  the  jury  were  told,  in  substance,  that  if 
appellant   knew   there   was   a   warrant  issued  against  him  and 
others,  and  that  the  deceased  and  others  were  there  for  the  pur- 
pose of  arresting  him,  then  he  had  no  right  to  use  force  to  resist 
them,  except  to  protect  himself  or  family  from  death  or  great 
bodily  harm,  although  the  warrant  was  illegal.   That  instruction 
has  no  foundation  of  either  fact  or  law  to  support  it.    The  record 
in  this  case  contains  no  evidence  whatever  that  any  warrant  of 
arrest  had  been  issued  against  appellant,  or  that  he  had  com- 
mitted any  offence  for  which  a  warrant  of  arrest  might  issue,  or 
that  the  party  went  to  his  house  to  arrest  him.   The  evidence  in 
regard  to  the  warrant  of  arrest,  meagre  as  it  is,  relates  to  Elijah 
Wright,  and  not  to  appellant  at  all. 

By  whom  and  how  arrests  may  be  made,  are  provided  by  the 
Criminal  Code,  the  sections  of  which  bearing  on  this  case  being 
as  follows : 

Sec.  36.   A  peace  officer  may  make  an  arrest — 

1.  In  obedience  to  a  warrant  of  arrest  delivered  to  him. 

2.  Without  a  warrant  when  a  public  offence  is  committed  in 
his  presence,  or  when  he  has  reasonable  grounds  for  believing 
that  a  person  arrested  has  committed  a  felony. 

Sec.  37.  A  private  person  may  make  an  arrest,  when  he  has 
reasonable  grounds  for  believing  that  the  person  arrested  has 
committed  a  felony. 

Sec.  38.  A  magistrate  or  any  judge  may  orally  order  a  p'eace 
officer  or  private  person  to  arrest  any  one  committing  a  public 


118  NATURE   AND   ELEMENTS. 

offence  in  the  magistrate's  or  judge's  presence,  which  order  shall 
authorize  the  arrest. 

It  will  be  perceived  that  the  only  cases  in  which  any  other 
pe'rson  besides  a  sheriff,  constable,  coroner,  jailer,  marshal  or 
policeman,  who  are  by  section  26  denominated  peace  officers,  can 
make  an  arrest,  is  under  section  37,  where  the  person  making  it 
has  reasonable  grounds  for  believing  the  person  arrested  has  com- 
mitted a  felony,  or  under  section  38,  where  a  magistrate  or  judge 
orders  the  arrest  of  one  at  the  time  committing  a  public  offence 
in  the  presence  of  the  magistrate  or  judge.  And  not  even  a  peace 
officer  is  authorized  to  make  an  arrest  without  a  warrant  issued 
and  delivered  to  him,  except  when  a  public  offence  is  committed 
in  his  presence,  or  when  he  has  reasonable  grounds  to  believe  that 
the  person  arrested  has  committed  a  felony. 

There  is  no  evidence  showing  or  tending  to  show  that  any  of 
the  party  had  reasonable  grounds  to  believe  that  Elijah  Wright 
had  committed  a  felony,  or  even  that  their  purpose  was  to  arrest 
him  for  a  felony;  but  the  only  offence  for  which  they  went  to  the 
house  of  appellant  to  arrest  him,  if  such  was  their  real  object,  was 
misdemeanor  previously  committed,  if  he  had  committed  any 
offence. 

It  is  then  plain  that  no  one  of  the  party  had  authority  to  ar- 
rest either  appellant  or  Elijah  Wright,  the  justice  of  the  peace 
having  no  right  to  make  it  himself,  or  to  deputize  Perdue  to 
do  so. 

Section  39  provides  that  the  person  making  an  arrest  shall  in- 
form the  person  about  to  be  arrested  of  the  intention  to  arrest 
him,  of  the  offence  charged  against  him  for  which  he  is  to  be 
arrested,  and  if  acting  under  a  warrant  of  arrest,  shall  give  in- 
formation thereof,  and  if  required,  shall  show  the  warrant.  An 
arrest  made  in  substantial  compliance  with  the  terms  of  that  sec- 
tion is  a  legal  arrest,  which  no  one  can  lawfully  resist.  But  to 
make  or  attempt  to  make  an  arrest  in  disregard  or  violation  of 
that  section  is  an  illegal  act,  which  the  person  about  to  be  ar- 
rested is  not  required  to  submit  to.  And  if  it  had  been  even  a 
peace  officer  armed  with  a  warrant  instead  of  the  party  of  un- 
authorized persons,  appellant  would  have  had  the  right  to  resist 
with  all  the  force  necessary  to  prevent  the  breaking  and  entering 
his  dwelling-house  at  the  time  and  in  the  manner  it  was  done  by 
the  party  of  which  the  deceased  was  a  member. 


WRIGHT   V.   COMMONWEALTH.  119 

The  deceased  and  those  with  him,  therefore,  not  only  had  no 
authority  to  arrest  either  appellant  or  Elijah  Wright,  but  the 
manner  in  which  it  was  attempted  constituted  an  assault  upon 
appellant,  which  he  and  all  the  inmates  of  his  house  at  the  time, 
including  Elijah  Wright,  had  the  right  to  resist  with  all  the  force 
necessary  to  prevent  it,  even  to  taking  life.  Eor,  as  has  been 
said  "the  making  an  attack  upon  a  dwelling,  and  especially  at 
night,  the  law  regards  as  equivalent  to  an  assault  upon  a  man's 
person,  for  a  man's  house  is  his  castle."  And  it  is  well  settled 
that  when  a  case  arises  justifying  the  owner  in  resisting  the 
breaking  or  forcible  entrance  of  his  dwelling-house,  his  servants 
or  guests  may  arm  themselves  for  the  purpose  of  resistance.  (See 
Wharton  on  Homicide,  section  552,  and  authorities  there  cited.) 
It  is  true  the  rule  is  generally  held  not  to  be  so  extended  as  to 
excuse  the  killing  of  persons  not  actually  breaking  into  a  house, 
or  in  the  act  of  breaking  into  it.  But  when,  as  in  this  case,  the 
house  is  actually  broken  and  entered  by  a  portion  of  a  party 
combined  and  armed  for  the  unlawful  purpose  of  depriving  one 
of  the  inmates  of  his  liberty,  and  carrying  him  away  in  the  night 
time,  accompanied  with  an  attempt  to  commit  a  felony,  as  was 
done  in  this  case,  the  person  thus  assaulted,  as  well  as  the  owner 
of  the  dwelling,  may  resist  with  such  force  as  may  be  necessary, 
even  to  taking  the  life  of  those  present  aiding  and  assisting,  as 
well  as  those  actually  breaking  and  entering. 

Up  to  the  time  that  the  party  fell  back  to  the  corn-crib,  as  the 
facts  now  appear,  the  killing  of  appellant  or  any  inmate  of  his 
dwelling-house,  would  have  been  murder,  while  the  killing  of 
any  member  of  the  party  by  any  inmate  of  the  house  would  have 
been  excusable  homicide.  And  appellant  was  not  required  to  re- 
main in  his  house,  nor  to  retreat  from  his  house,  but  he  had  the 
right,  outside  or  inside,  to  use  such  force  as  was  necessary,  or 
reasonably  appeared  to  him  to  be  necessary,  even  after  the  party 
fell  back  to  the  corn-crib,  to  prevent  any  further  assault  upon  his 
person  or  his  castle. 

A  mere  demonstration,  or  even  threat,  to  break  a  dwelling- 
house  will  not  excuse  a  homicide  by  the  owner  or  inmate.  But 
when,  as  in  this  case,  it  had  already  been  broken  and  fired  into, 
and  a  felony  attempted,  appellant  had  the  right  to  act  according 
to  surrounding  circumstances  as  they  appeared  to  him. 


120  NATURE   AND   ELEMENTS. 

It  was,  therefore,  improper  for  the  court  to  omit  from  the  in- 
structions the  qualification  that  appellant  had  the  right  to  fire 
upon  the  deceased,  or  any  other  member  of  the  party,  if  he  be- 
lieved from  all  the  circumstances  as  they  reasonably  appeared  to 
him,  that  the  deceased  or  any  member  of  the  party  was  about  to 
again  forcibly  enter  his  house,  or  to  fire  into  it. 

It  was  also  improper  to  make  appellant's  right  to  shoot  depend 
upon  there  being  no  other  reasonably  apparent  means  of  escape. 
He  was  not  required  to  flee  from  his  dwelling,  but  had  the  right 
to  stand  his  ground  and  use  all  the  force  necessary,  or  that  rea- 
sonably appeared  to  him  necessary,  in  or  out  of  it,  to  prevent  a 
forcible  re-entrance  or  firing  into  it  with  the  intent  mentioned. 
For  it  had  been  already  broken,  and  an  attempt  had  been  made 
to  commit  a  felony  in  it,  and  the  party  still  remained  in  a  menac- 
ing attitude,  and  were  still  firing  at  him  and  the  house,  as  well 
as  at  Elijah  Wright,  who  had  been  compelled  to  flee  for  his  life. 
In  fact,  as  this  record  stands,  there  had  been  no  cessation  of  the 
original  unlawful  purpose  of  the  party,  or  of  the  effort  to  carry 
it  out. 

Wherefore,  the  judgment  is  reversed,  and  cause  remanded  for 
a  new  trial  and  further  proceedings  consistent  with  this  opinion. 

Wilson  v.  State,  30  Fla.  234;  State  v.  Steele,  106  N.  C.  766;  Pond  v. 
People,  8  Mich.  150;  State  v.  Peacock,  40  Ohio  St.  333;  Corey  v.  People, 
45  Barb.  (N.  Y.)  262;  State  v.  Taylor,  82  N.  C.  554;  Carroll  v.  State,  23 
Ala.  28;  State  v.  Scheele,  57  Conn.  307;  People  v.  Lilly,  38  Mich.  270; 
Greschia  v.  People,  53  111.  295;  Estep  v.  Com.,  86  Ky.  39;  People  v. 
Coughlin,  67  Mich.  466;  Patten  v.  People,  18  Mich.  314;  Hurd  v.  People, 
25  Mich.  405;  State  v,  Martin,  30  Wis.  216;  De  Forest  v.  State,  21  Ind. 
23;  State  v.  Davis,  80  N.  C.  351;  Clark  p.  142;  Bishop  I.,  Sec.  858-859; 
Wharton,  502,  503;  Hawley  &  McGregor,  p.  135. 


UNITED  STATES   V.   KICE.  121 


(4)  Enforcement  of  Law. 

No  criminal  responsibility  attaches  for  any  act  done  by 
an  officer  of  the  law  in  the  proper  execution  of  a  lawful 
order  from  a  court  of  competent  jurisdiction. 

UNITED  STATES  v.  KICE. 

Circuit  Court  of  the  United  States,  1875. 
1  Hughes,  560. 

ON  the  1 5th  of  last  September,  Andrew  Woody,  of  Spring  Creek, 
Madison  County,  was  killed  by  Noah  H.  Rice,  a  United  States 
deputy  marshal,  who  was  endeavoring  to  serve  a  capias  on  him 
for  violation  of  the  Internal  Revenue  Laws.  From  facts 
developed  before  the  court  it  appears  that  Woody  had  expressed 
a  determination  to  resist  any  process  which  might  issue  against 
him,  and  had  threatened  to  kill  the  defendant,  Rice,  if  he  at- 
tempted to  arrest  him.  When  this  officer  came  upon  Woody  the 
latter  was  armed  with  a  rifle.  His  demeanor  was  hostile,  and 
when  commanded  to  surrender  he  so  acted  as  to  impress  the 
officer  with  the  belief  that  his  intention  was  to  shoot  him,  and  in 
self-defence  he  fired  upon  Woody  with  fatal  effect.  Rice  came  to 
Asheville  and  surrendered  himself  to  the  authorities,  was  ex- 
amined by  Commissioner  Watts  on  application  for  bail,  and  com- 
mitted to  jail.  His  case  was  finally  removed  to  the  United  States 
Court,  on  Tuesday,  May  llth,  1875.  He  was  placed  upon  trial 
for  his  life.  The  jury  having  requested  full  instructions  from  the 
bench,  they  were  given  as  follows  by 

DICK,  J.  As  this  is  a  case  of  considerable  importance  to  the 
defendant,  and  also  to  the  due  administration  of  justice,  I  have 
deemed  it  proper  to  commit  to  writing  my  instructions  to  the 
jury  upon  the  questions  of  law  involved. 

In  this  court  in  a  trial  for  crime  before  one  judge,  defendants 
have  no  right  to  appeal,  and  the  only  remedy  which  they  can 
have  for  misdirections  to  the  jury  on  the  part  of  the  judge,  is  a 


122  NATURE  AND  ELEMENTS. 

motion  for  a  new  trial  to  be  heard  before  the  other  judges  of  the 
court  who  were  not  present  at  the  trial;  then,  upon  a  certificate 
of  a  division  of  opinion  between  the  judges  upon  questions  of 
law,  the  case  may  be  carried  to  the  Supreme  Court  for  review. 

In  all  capital  felonies  tried  by  me  sitting  alone,  I  will  allow 
defendants  who  may  be  convicted  the  benefit  of  these  remedies; 
and  I  will  always  reduce  to  writing  my  instructions  to  the  jury, 
so  that  if  I  commit  an  error  it  may  be  corrected  by  the  other 
judges  who  are  authorized  to  preside  in  this  court.  All  persons 
whose  lives  are  put  in  jeopardy  by  a  trial  in  court  ought  to  have 
the  benefit  of  all  remedies  afforded  by  law  to  guard  against  error 
and  injustice. 

The  humane  and  remedial  provisions  of  the  law  ought  to  be 
fully  afforded  by  courts  of  justice  in  favor  of  human  life. 

The  defendant  in  this  case  is  charged  with  murder  by  an  in- 
dictment found  in  the  State  Court,  and  removed  under  the  pro- 
visions of  an  act  of  Congress  to  this  court.  This  court  has  no 
original  jurisdiction  of  the  offence  charged,  but  the  case  must  be 
tried  in  the  same  manner  as  cases  originating  in  this  court;  that 
is,  the  forms  and  modes  of  proceeding  and  the  rules  of  evidence 
must  be  regulated  by  the  course  and  practice  of  this  court  in 
criminal  trials.  The  law  which  defines  the  offence  is  the  criminal 
law  which  prevails  in  this  State. 

This  indictment  is  not  founded  upon  a  State  statute,  but  is  for 
an  offence  at  common  law.  The  laws  of  this  State  declare  that 
the  common  law,  with  certain  specified  modifications,  shall  be  in 
full  force  in  this  State.  If  the  indictment  was  founded  upon  a 
State  statute,  we  would  be  bound  to  regard  the  construction  and 
exposition  placed  upon  such  statute  by  the  Supreme  Court  of 
the  State  as  a  rule  of  decision.  As  it  is  founded  upon  the  com- 
mon law,  we  will  look  to  the  decisions  of  the  State  Supreme 
Court  as  highly  important  guides,  but  not  as  absolute  authorities. 
We  are  at  liberty  to  derive  information  as  to  the  principles  of  the 
common  law  from  the  decisions  of  all  the  courts  of  England  and 
this  country  which  profess  to  administer  criminal  justice  accord- 
ing to  that  wise,  just,  and  time-honored  system  of  law. 

It  is  conceded  that  the  alleged  homicide  was  committed  by  the 
defendant,  and  he  places  his  defence  upon  the  ground  that  he 
was  a  regularly  constituted  officer  of  the  United  States,  and  had 


UNITED   STATES  V.   BICE.  123 

in  his  hands  at  the  time  of  the  homicide  the  process  of  law  which 
authorized  and  commanded  him  to  arrest  the  deceased  for  a  crime 
against  the  United  States;  that  the  deceased  resisted  the  execu- 
tion of  such  process  with  a  deadly  weapon  in  his  hands,  and  had 
manifested  a  purpose  to  use  such  deadly  weapon  in  resistance; 
and  that  the  homicide  was  necessarily  committed  in  the  attempt 
to  make  an  arrest. 

This  defence  necessarily  leads  us  to  inquire  what  protection 
the  common  law  affords  to  ministerial  officers,  and  how  far  they 
are  authorized  to  go  in  the  performance  of  their  public  duties. 

Social  order  and  political  government  are  dependent  upon  the 
observance  of  law  by  the  citizen.  The  mandates  of  the  law  are 
executed  by  officers  provided  for  such  purposes,  and  such  officers 
are  invested  by  the  law  with  the  authority  necessary  to  execute 
its  mandates,  and  it  affords  them  all  the  protection  possible  in  the 
rightful  performance  of  the  duties  imposed.  This  rule  is  abso- 
lutely necessary  for  the  advancement  of  justice,  and  is  founded 
in  wisdom  and  equity  and  in  the  principles  of  social  and  political 
order.  The  law  must  be  supreme  within  the  sphere  of  its  opera- 
tion, or  its  influence  would  be  nugatory,  and  there  would  be  no 
certain  rule  to  regulate  human  conduct  in  society  and  govern- 
ment, and  all  the  rights  and  liberties  of  citizens  would  soon  be 
lost  in  a  chaos  of  anarchy. 

Mr.  Justice  Foster  says:  "Ministers  of  justice  while  in  the 
execution  of  their  offices  are  under  the  peculiar  protection  of  the 
law."  (Foster,  308.)  If  an  officer  is  killed  while  performing  his 
duty,  the  law  deems  such  killing  murder  of  malice  prepense. 

This  protection  is  not  confined  to  the  precise  time  when  the 
officer  is  performing  his  official  duty,  but  extends  over  him  while 
going  to,  remaining  at,  and  returning  from  the  place  of  action. 
Any  opposition,  obstruction,  or  resistance  intended  to  prevent  an 
officer  from  doing  his  official  duty,  is  an  indictable  offence  at 
common  law,  and  the  punishment  is  regulated  by  the  nature  of 
the  offence. 

An  officer  is  authorized  to  summons  as  many  persons  as  may  be 
necessary  to  assist  him  in  the  performance  of  his  legal  duties,  and 
such  persons  are  bound  to  obey  such  summons,  and  they  are  un- 
der the  same  protection  afforded  to  officers,  as  they  are  for  the 
time  officers  of  the  law.  The  law  imposes  upon  private  persons 


124  KATURE  AND   ELEMENTS. 

the  duty  of  suppressing  affrays,  preventing  felonies  from  being 
committed  in  their  presence,  and  arresting  such  offenders  and 
bringing  them  to  justice;  and  such  private  persons,  while  per- 
forming their  duties,  are  under  the  protection  of  the  law.  We 
may  confidently  lay  down  the  broad  general  principle,  that  when 
any  person  is  performing  a  public  duty  required  of  him  by  law, 
he  is  under  the  protection  of  the  law.  An  officer  of  the  law  who 
has  legal  process  in  his  hands  is  bound  to  execute  it  according  to 
the  mandate  of  the  writ.  If  he  is  resisted  in  the  performance  of 
this  duty,  he  must  overcome  such  resistance  by  the  use  of  such 
force  as  may  be  necessary  for  him  to  execute  his  duty.  If  neces- 
sary, the  law  authorizes  him  to  resort  to  extreme  measures,  and 
if  the  resisting  party  is  killed  in  the  struggle  the  homicide  is 
justifiable.  (Garrett's  Case,  N.  C.  K.,  144,  Winston.) 

If  unnecessary  and  excessive  force  is  used,  after  resistance  has 
entirely  ceased  and  the  defendant  in  the  writ  has  manifested  his 
willingness  to  submit  to  the  mandates  of  the  law  and  be  arrested, 
then  if  the  said  defendant  is  killed  the  officer  will  be  guilty  of 
manslaughter;  and  if  the  blood  had  time  to  cool,  the  killing 
would  be  murder.  (2  Wharton,  Grim.  Law,  1030-31,  and  au- 
thorities referred  to  in  note.)  If,  however,  the  defendant  in  the 
writ  only  ceases  his  resistance  upon  the  officer  desisting  from 
his  attempt  to  arrest,  and  still  keeps  himself  in  a  condition  to 
renew  the  resistance  with  a  deadly  weapon,  if  the  officer  should 
renew  the  effort  to  arrest,  and  the  officer  cannot  make  the  arrest 
without  great  personal  danger,  he  would  be  justified  in  killing 
the  defendant.  The  submission  of  the  defendant  in  such  a  case 
is  not  complete,  and  as  long  as  he  refuses  to  be  arrested  he  is  in  a 
state  of  resistance;  and  if  he  is  armed  with  a  deadly  weapon,  and 
has  manifested  an  intent  to  use  it,  and  still  keeps  the  weapon  in 
his  possession  convenient  for  an  emergency,  and  the  officer  has 
reasonable  grounds  for  believing  that  the  weapon  will  be  used 
if  an  arrest  is  attempted,  the  officer  is  not  required  to  risk  his 
life  in  a  rencounter,  or  desist  from  an  effort  to  perform  his  duty. 
When  a  person  puts  himself  in  an  armed  and  deadly  resistance 
to  the  process  of  the  law,  he  becomes  virtually  an  outlaw,  and 
officers  are  not  required  to  show  him  the  courtesy  of  a  chivalrous 
antagonist  and  give  him  an  open  field  and  fair  fight.  It  is  only  when 
a  criminal  submits  to  the  law  that  it  throws  round  him  the  mantle 


UNITED   STATES   V.   RICE.  125 

of  protection  and  administers  justice  with  mercy.  It  is  the  duty 
of  every  offender  charged  with  crime  in  due  process  of  law  to 
quietly  yield  himself  up  to  public  justice.  (State  v.  Bryant,  65, 
327;  State  v.  Garrett's  Case,  Winston,  144.) 

A  known  officer,  in  attempting  to  make  an  arrest  by  virtue  of 
a  warrant,  is  not  bound  to  exhibit  his  warrant  and  read  it  to  a 
defendant  before  he  secures  him,  if  he  resists;  if  no  resistance  is 
offered,  the  officer  ought  always,  upon  demand  made,  show  his 
warrant  to  the  party  arrested  or  notify  him  of  the  substance  of 
the  warrant,  so  that  he  may  have  no  excuse  for  placing  himself 
in  opposition  to  the  process  of  the  law.  This  is  only  a  rule  of 
precaution.  A  defendant  is  bound  to  submit  to  a  known  officer; 
to  yield  himself  immediately  and  peaceably  into  the  custody  of 
the  officer  before  the  law  gives  him  the  right  of  having  the  war- 
rant read  and  explained;  when  in  resistance,  the  law  shows  him 
no  favor.  A  defendant,  knowing  the  arresting  party  to  be  an 
officer,  is  bound  to  submit  to  the  arrest,  reserving  the  right  of 
action  against  the  officer  in  case  the  latter  be  in  the  wrong.  When 
a  person  acts  in  a  public  capacity  as  an  officer,  it  will  be  presumed 
that  he  was  rightfully  appointed.  (1  Wharton,  Or.  L.,  Sees. 
1289,  2925;  Cooley's  Case,  6  Gray,  Mass.,  350.) 

One  who  is  not  a  known  officer  ought  to  i.how  his  warrant 
and  read  it,  if  required;  but  it  would  seem  that  this  duty  is  not 
so  imperative  as  that  a  neglect  of  it  would  make  him  a  trespasser 
ab  initio,  when  there  is  proof  that  the  party  subject  to  be  arrested 
had  notice  of  the  warrant,  and  was  fully  aware  of  its  contents, 
and  had  made  up  his  mind  to  resist  its  execution  at  all  hazards. 
(Garrett's  Case,  supra.) 

The  law,  in  its  humanity  and  justice,  will  not  allow  unneces- 
sary force  to  be  used  in  the  execution  of  its  process.  If  a  defend- 
ant, without  any  deadly  weapon  or  manifestation  of  excessive 
violence,  makes  resistance,  an  officer  is  not  justified  in  willfully 
shooting  him  down;  but  if  a  defendant  has  a  deadly  weapon, 
and  has  manifested  a  purpose  to  use  it  if  an  arrest  is  attempted, 
the  officer  is  not  bound  to  wait  for  him  to  have  an  opportunity 
of  carrying  his  purpose  into  effect.  If  the  warrant  is  for  a  mis- 
demeanor and  a  defendant  attempts  to  avoid  an  arrest  by  flight, 
the  officer  has  no  right  to  shoot  him  down  to  prevent  escape,  nor 
even  after  an  arrest  has  been  made  and  defendant  escapes  from 
custody.  (Forster's  Case,  1  L.  C.  C.,  187.) 


126  NATURE   AND   ELEMENTS. 

The  rule  is  different  in  cases  of  felony.  (Bryant's  Case, 
supra.) 

If  an  officer  has  process  in  his  hands  issuing  from  a  court  of 
competent  jurisdiction  over  the  subject-matter,  authorizing  and 
commanding  him  to  arrest  a  defendant,  he  is  entitled  to  the  pro- 
tection which  the  laws  afford  officers  acting  under  process, 
although  the  process  in  his  hands  is  informal  and  irregular.  If 
the  process  is  illegal  and  void  on  its  face,  or  is  against  the  wrong 
person,  or  its  execution  is  attempted  out  of  the  district  in  which 
it  can  alone  be  executed,  then  the  officer  would  not  be  under  the 
protection  of  the  law;  but  it  would  seem  that  if  he  kills  a  resist- 
ing party  under  such  circumstances,  he  would  only  be  guilty  of 
manslaughter,  unless  he  had  actual  knowledge  of  his  want  of 
authority,  or  acted  from  express  malice. 

I  have  stated  to  you  many  points  of  law  which  do  not  directly 
arise  in  the  case  before  us;  but  it  is  important  that  they  should 
be  known  and  well  understood  in  the  country,  where,  in  recent 
years,  so  much  violence  has  been  committed — violence  in  the 
name  of  law  and  violence  in  defiance  of  law. 

The  principles  of  law  involved  in  this  case  having  been  ex- 
plained to  you  by  the  court,  it  is  now  your  duty  to  ascertain  the 
facts  from  the  testimony  and  apply  them  to  the  law  as  laid  down 
by  the  court. 

In  performing  this  important  and  solemn  duty  there  are  three 
points  worthy  of  your  special  inquiry: 

1st.  Whether  the  prisoner  on  trial  was  a  known  officer  of  the 
law  and  had  in  his  hands,  at  the  time  of  the  homicide,  legal 
process  authorizing  and  commanding  him  to  arrest  the  deceased. 

2d.  Whether  deceased  made  resistance  to  the  execution  of 
legal  process  with  a  gun  in  his  hands,  and  had  manifested  and 
continued  to  entertain  a  purpose  to  use  such  gun  if  an  arrest  was 
attempted. 

3d.  Whether  the  resistance,  if  made,  had  entirely  ceased,  and 
the  deceased  had  yielded  himself  quietly  and  willingly  into  the 
custody  of  the  officer,  and  no  longer  had  any  purpose  of 
resistance. 

Upon  the  first  point  I  will  state,  as  a  conclusion  of  law,  that 
it  is  the  duty  of  a  court  to  recognize  its  regular  officers  and 
process.  I  therefore  instruct  you  that  the  defendant  was  a  regu- 


UNITED   STATES  V.   BICE.  127 

larly  constituted  officer  of  this  court  and  the  process  under  which 
he  professed  to  act  was  due  process  of  law.  The  only  questions  left 
for  you  to  determine  on  this  point  are,  Did  the  prisoner  have 
such  process  in  his  hands  at  the  time  of  the  homicide?  Was  he 
endeavoring  to  execute  such  process?  Was  he  a  known  officer  of 
the  law?  And  did  the  deceased  have  good  reason  to  believe  that 
there  was  an  indictment  against  him  which  made  him  amenable 
to  legal  process? 

The  second  and  third  points  presented  involve  questions  of 
fact  which  you  must  ascertain  and  determine  from  the  testimony 
in  the  case.  To  aid  you  in  the  performance  of  this  duty,  I  will 
now,  in  obedience  to  the  requirements  of  the  law,  proceed  to  re- 
capitulate the  testimony,  and  will  carefully  endeavor  not  to 
express  an  opinion  on  the  subject.  I  solemnly  warn  you  not  to 
allow  your  verdict  upon  questions  of  fact  to  be  influenced  by  any 
impressions  that  you  may  form  as  to  the  conclusions  of  my  mind. 
You  must  form  your  opinions  upon  questions  of  fact  from  the 
testimony,  and  allow  no  prejudice  or  outside  influence  to  control 
your  action. 


* 


From  this  recapitulation  and  your  own  recollection  you  will 
perceive  that  the  testimony  is  very  conflicting.  It  is  your  duty 
carefully  to  consider  the  whole  testimony  and  reconcile,  as  far  as 
you  can,  any  apparent  conflicts;  and  when  this  cannot  be  done, 
you  must  believe  that  which  you  think,  under  all  the  circum- 
stances, is  entitled  to  the  most  credit.  If,  upon  any  question, 
you  have  a  reasonable  doubt  as  to  the  truth  of  the  matter,  you 
must  render  this  doubt  in  favor  of  the  defendant.  This  is  the 
humane  rule  of  the  law  in  all  criminal  trials,  but  it  is  specially 
important  and  imperative  in  trials  for  capital  felonies. 

There  are  some  circumstances  connected  with  this  case  which 
I  feel  it  to  be  my  duty  to  call  to  your  special  attention,  in  order 
that  they  may  not  have  an  improper  influence  upon  your  action. 
The  revenue  laws  have  been  the  subject  of  much  exciting  dis- 
cussion. Some  persons  advocate  their  rigorous  enforcement, 
while  others  denounce  such  laws  as  unjust,  inexpedient,  and  op- 
pressive. All  persons  engaged  in  the  execution  of  these  laws  have 
their  warm  friends  and  bitter  opponents.  No  such  influences 
should  enter  into  and  control  your  deliberations.  A  citizen  on 


128  NATURE   AND   ELEMENTS. 

trial  for  crime  is  entitled  to  be  confronted  in  court  by  his  accusers 
and  have  them  solemnly  sworn  to  tell  the  truth.  He  is  also  en- 
titled to  be  tried  by  a  jury  of  his  peers,  who  are  free  from  all 
prejudices,  and  who  in  their  action  will  have  an  eye  single  to 
justice  and  truth.  These  rights  are  as  old  as  the  common  law; 
they  constitute  fundamental  principles  of  English  and  American 
freedom,  and  have  been  secured  in  the  Federal  and  all  State  con- 
stitutions. They  extend  to  all  trials  for  crime,  but  they  ought  to 
be  especially  regarded  as  sacred  and  inviolable  where  human  life 
is  put  in  jeopardy. 

You,  gentlemen  of  the  jury,  acting  under  the  solemn  obliga- 
tions of  your  oath,  and  as  fair-minded  and  impartial  men,  should 
discard  all  opinions  and  prejudices  which  you  may  have  formed 
for  or  against  the  defendant,  and  try  him  as  all  citizens  charged 
with  crime  ought  to  be  tried — according  to  the  law  and  the  testi- 
mony. 

Gentlemen  of  the  jury,  if  you  come  to  the  conclusion,  after 
weighing  all  the  testimony,  that  the  deceased  made  resistance  to 
the  execution  of  legal  process  with  a  gun  in  his  hands,  and  had 
manifested  and  continued  to  entertain  a  purpose  to  use  such  gun 
if  an  arrest  was  attempted,  then  you  will  find  the  defendant  not 
guilty. 

2d.  If  you  find  that  resistance  was  made  but  had  entirely 
ceased  and  the  deceased  had  yielded  himself  quietly  and  com- 
pletely into  the  custody  of  the  officer,  and  no  longer  had  any 
purpose  of  resistance,  then  the  prisoner  is  guilty  of  manslaughter; 
and  if  sufficient  time  had  elapsed  for  the  prisoner  to  get  over  the 
excitement  caused  by  the  resistance,  then  he  is  guilty  of  murder. 

If  you  have  any  reasonable  doubts  upon  these  questions,  then 
the  defendant  is  entitled  to  the  benefit  of  these  doubts. 

The  jury,  after  a  retirement  of  two  hours,  found  a  verdict  of 
"not  guilty." 

U.  S.  v.  Clarke,  31  Fed.  Rep.  710;  Wolf  v.  State,  19  Ohio  St  248;  Kelly 
«.  State,  68  Fed.  652;  Dilger  v.  Com.,  88  Ky.  550;  State  v.  Moore,  39 
Conn.  244;  State  v.  Turlington,  102  Mo.  642;  State  v.  Bland,  97  N.  C. 
438;  Jackson  v.  State,  76  Ga.  473;  Head  v.  Martin,  85  Ky.  480;  State  v. 
Dieberger,  96  Mo.  666;  Clark,  p.  133;  Wharton,  508;  Hawley  &  Mc- 
Gregor, 122. 


STATE  V.  MAYOR  AND   ALDERMEN   OF   KNOXVILLE.  129 


(5)  Public  Policy. 

Acts  otherwise  criminal  may  be  justified  on  the  ground 
of  public  policy,  when  done  distinctly  and  unequivocally  for 
the  public  weal. 

STATE  v.  MAYOR  AND  ALDERMEN  OF  KNOXVILLE. 

Supreme  Court  of  Tennessee,  1883. 
12  Lea,  146. 

FREEMAN,  J.,  delivered  the  opinion  of  the  court. 

It  appears  from  this  record  that  in  the  latter  part  of  the  year 
1882,  and  first  of  1883,  the  small-pox,  as  an  epidemic,  prevailed 
to  a  considerable  extent.  The  city  of  Knoxville,  as  well  as  the 
county,  thought  it  their  duty,  through  their  authorized  agencies, 
to  take  active  measures  to  relieve  as  well  as  prevent  the  spread 
of  the  disease  both  in  the  city  and  the  surrounding  country.  To 
this  end  a  small-pox  hospital  was  established  at  the  fair-grounds, 
about  two  miles  from  the  city,  with  suitable  buildings  for  receiv- 
ing infected  patients,  and  two  physicians,  Drs.  Hudgins  and 
Shaw,  employed,  the  one  by  the  city,  the  other  by  the  county, 
to  attend  patients  suffering  with  the  disease.  Among  the  precau- 
tionary measures  taken  to  prevent  the  spread  of  the  plague,  the 
clothing,  beds  and  bedsteads  used  by  persons  who  had  the  disease, 
and  either  recovered  or  died,  were  directed  to  be  burnt,  no  doubt 
under  the  direction  of  the  attending  physicians.  This,  we  take  it, 
was  done  regularly  and  frequently  for  some  months,  as  often  as 
occasion  required.  The  fair-grounds  property  consisted  of  be- 
tween sixty  and  sixty-five  acres  of  land,  the  building  being  within 
this  property,  and  the  infected  articles  burnt  on  these  grounds, 
probably  in  pits  dug  for  the  purpose.  The  burning  seems  to  have 
been  some  four  hundred  yards  from  the  nearest  houses,  but  there 
appears  to  have  been  numerous  dwellings  occupied  about  that 
distance,  and  farther  off,  but  still  liable,  more  or  less,  to  be  af- 
fected by  the  smoke  and  the  scent  from  the  burning  clothing, 
&c.  That  this  at  times  was  more  or  less  offensive  is  probable,  if 
not  certain.  For  a  nuisance,  the  result  of  this  burning  and  the 
9 


130  MATURE   AND   ELEMENTS. 

unpleasant  effects  of  the  smoke  thus  generated  and  disseminated, 
the  defendants  are  indicted. 

The  substance  of  the  charge  in  the  indictment  is  as  follows: 
"That  the  defendants  in  April,  1883,  near  the  houses  of  divers 
good  citizens  of  the  second  district  of  said  county,  and  near  two 
public  and  common  highways,  to  wit:  the  Rutledge  pike,  and  the 
road  running  through  and  by  Eastport  for  all  the  people  to  pass, 
did  keep  and  maintain  a  certain  house  and  ground  known  and 
called  a  small-pox  hospital,  where  small-pox  patients  and  persons 
afflicted  with  the  loathsome  disease  were  conveyed  and  quaran- 
tined by  said  Board  of  Mayor  and  Aldermen  and  J.  C.  Hudgins, 
and  that  they,  the  defendants,  unlawfully  and  injuriously  did 
burn,  and  caused  to  be  burned,  bed-clothes,  feathers,  bedsteads 
and  clothing,  that  had  been  used  upon,  for  and  about,  and  in 
nursing  said  small-pox  patients,  and  persons  afflicted  with  small- 
pox, and  being  infected  with  small-pox  as  aforesaid."  It  is  then 
averred  "that  by  means  aforesaid,  that  is  by  such  burning,  the 
said  defendants  did  in  fact  impregnate  and  poison  the  atmosphere 
around  and  about  said  public  highways  and  said  dwellings  and 
grounds  of  citizens,  whereby  noisome,  unwholesome  smells  from 
said  burning  aforesaid  on  divers  days  did  arise  so  that  the  air  was 
made  corrupt,  noisome  and  unhealthy  to  the  common  nuisance 
of  the  good  citizens  residing  and  passing,"  &c. 

We  have  quoted  the  language  of  the  indictment,  to  which  the 
defendants  plead  not  guilty. 

The  question  definitely  made  by  this  averment  is  whether  the 
defendants  are  guilty  of  a  public  nuisance  by  burning  the  cloth- 
ing, beds,  &c.,  of  small-pox  patients  so  as  to  impregnate  the  air 
by  such  burning  with  smoke,  to  the  annoyance,  hurt  or  incon- 
venience of  the  public  residing  near  by  or  passing  the  public 
roads  in  the  manner  indicated  by  the  statement  of  the  indict- 
ment? 

It  is  not  averred  that  the  manner  of  doing  this  was  improper, 
that  there  was  any  neglect  of  ordinary  or  reasonable  precautions 
to  protect  persons  from  the  effects  of  the  burning  clothing,  but 
only  that  it  was  "unlawfully  and  injuriously  done,"  producing 
the  smoke  by  which  the  air  was  unwholesomely  impregnated  with 
offensive  smells  from  the  burning  articles,  and  this  unwholesome 
infection  of  the  air  is  averred  to  have  been  a  common  nuisance. 


STATE  V.   MAYOR  AND   ALDERMEN   OF    KNOXVILLE.  131 

There  is  no  averment  of  the  indictment  putting  in  issue  the 
right  of  the  city  or  county  to  establish  this  hospital,  or  that  the 
hospital  itself  was  per  se  a  nuisance.  The  establishment  of  the 
hospital  is  only  stated  by  way  of  historical  inducement  to  the  real 
charge,  which  is,  that  by  burning  the  clothing,  beds,  &c.,  the 
air  was  rendered  unwholesome  and  noxious,  and  offensive  to  the 
citizens  inhabiting  near  the  place  and  the  public  highways.  This 
is  the  real  question,  then,  presented  by  the  indictment,  whether 
under  the  facts  and  circumstances  of  the  case,  under  a  proper 
charge  of  the  court,  the  defendants  are  guilty  of  an  offence 
against  the  public  to  be  punished  by  the  State  in  what  they  are 
charged  to  have  done. 

That  the  State  may  well  authorize  the  erection  of  hospitals, 
and  make  such  regulations  as  shall  be  deemed  effective  to  prevent 
the  spread  of  an  infectious  epidemic  disease,  no  one  at  this  day 
would  question.  It  is  among  the  inherent  police  powers  that  be- 
long to  all  governments.  Regulations  requiring  drainage  in 
cities,  the  removal  of  offal  and  noxious  decaying  substances  in  the 
midst  of  dense  populations,  and  many  other  like  things,  belong 
to  this  category.  See  Cooley  Const.  Lim.,  5th  ed.,  740-1-2-3. 

That  it  can  equally  authorize  such  needful  regulations  and 
establishments  by  towns  and  cities,  is  equally  clear.  In  fact  it 
might  be  fairly  inferred,  as  the  incidental  powers  of  a  municipal 
government  charged  with  the  protection  of  life  and  property  of  a 
citizenship  by  the  necessity  of  the  case,  closely  aggregated  within 
a  comparatively  small  space,  where  infection  in  case  of  prevalent 
epidemics  is  liable  to  spread  rapidly  and  certainly,  to  establish 
hospitals,  and  make  such  regulations  as  would  tend  to  isolate  the 
infected  from  contact  with  the  general  public.  The  failure  to 
exercise  such  power  would  be  deemed  in  this  age  a  mark  of  a 
crude  and  undeveloped  civilization.  See  Wait's  Actions  and 
Def.,  Vol.  4,  764,  and  authorities  cited.  Suffice  it  to  say,  how- 
ever, here,  that  the  power  to  establish  the  hospital  in  this  case  is 
not  a  question  raised  by  the  indictment  directly,  but  the  ques- 
tion is  whether  the  impregnation  of  the  air  by  the  smoke  from 
the  burning  clothing  under  the  circumstances  is  criminal?  That 
smoke  or  noxious  vapors  which  materially  corrupt  the  air, 
rendering  the  occupation  of  houses  near  by  uncomfortable  as 
habitations  is  a  nuisance,  is  settled  by  the  uniform  current  of  au- 


132  NATURE   AND  ELEMENTS. 

thorities.  That  the  owner  or  occupier  of  houses,  whether  in  the 
city  or  country,  has  the  right  to  enjoy  pure  and  wholesome  air, 
that  is,  as  pure  and  wholesome  as  their  local  situation  can  reason- 
ably supply,  and  any  act  which  materially  corrupts  or  pollutes 
the  air,  done  without  authority  or  justification  is  strictly  a  nuis- 
ance, is  well  settled  by  authority.  See  Wait's  Actions  and  Def., 
Vol.  4,  748,  authorities  cited.  This  is  all  clear.  The  jury  have 
found  the  defendants  guilty,  and  on  the  facts,  that  is  of  the  ex- 
istence of  the  smoke,  and  of  its  rendering  the  occupation  of  the 
houses  of  persons  living  hard  by  uncomfortable,  and  the  air  less 
pure  temporarily  than  otherwise,  would  have  been  the  case  from 
the  nature  of  their  location,  there  is  no  ground  on  which  this 
court  could  reverse  the  finding  of  facts  for  want  of  testimony  to 
sustain  it. 

The  question  is,  whether  this  finding  was  under  a  correct  state- 
ment of  the  law  by  the  court  below,  and  whether  there  was  a 
sufficient  justification  and  authority  for  what  was  done;  whether 
his  Honor  gave  defendants  the  benefit  of  the  rules  of  law  tending 
to  show  such  justification  and  authority  for  their  acts,  which  are 
not  of  themselves  denied  or  seriously  controverted? 

His  Honor,  after  defining  a  nuisance  with  reasonable  accuracy, 
and  telling  the  jury  that  the  burning  must  have  been  of  such 
character,  and  so  often,  as  to  create  a  permanent,  frequent  and 
common  nuisance,  said  to  the  jury  that  the  question  was  not  as  to 
the  authority  of  the  city  and  county  to  take  precautionary 
measures  to  prevent  the  spread  of  disease,  or  to  build  a  hospital 
for  that  purpose,  nor  whether  it  was  properly  located,  or  even 
whether  it  was  a  suitable  place,  nor  whether  the  burning  was  the 
best  means  to  destroy  infected  articles  of  bedding,  clothing,  &c. 
He1  then  refers  to  the  grounds  of  the  defence  that  no  nuisance 
was  really  committed,  and  if  so,  the  acts  were  within  the  scope 
and  authority  conferred  on  the  county  and  city  authorities  by  law. 

In  reference  to  these  defences  he  tells  the  jury  that  if  no  nuis- 
ance was  committed,  that  is,  no  injury  done  by  the  burning  to 
the  purity  of  the  air,  as  a  matter  of  course  defendants  were  not 
guilty. 

As  to  whether  there  was  any  legal  authority  for  doing  what 
was  done,  that  is,  the  burning  the  clothing,  &c.,  and  consequent 
creation  of  the  smoke  complained  of,  he  says,  substantially,  that 


STATB   V.   MAYOR   AND   ALDERMEN   OF   KNOXVILLE.  133 

the  powers  conferred  on  county  court  or  city  authorities  to  pre- 
vent the  introduction  and  spread  of  diseases  must  be  construed 
to  mean  lawful  acts,  and  not  the  exercise  of  unlimited  and 
arbitrary  powers,  and  it  could  not  be  presumed  the  Legislature 
intended  to  confer  such  powers,  as  from  mistake,  want  of  proper 
information  or  regard  to  the  rights  of  individuals  and  the  public, 
with  design  or  otherwise,  greater  evil  may  arise  than  they  may 
be  combatting.  How  an  act  authorized  by  the  Legislature  could 
per  se  be  unlawful  we  do  not  see. 

He  then  on  this  basis  told  the  jury  the  Legislature  could  not 
be  construed  to  have  authorized  a  violation  of  law,  and  the  powers 
conferred  on  the  city  were  to  be  exercised  with  due  regard  to  the 
legal  rights  of  all,  and  if  in  the  exercise  of  their  powers  the  city 
or  county  should  violate  the  law,  they  would  be  amenable  to  the 
law  for  its  violation.  Just  precisely  what  his  Honor  intended  the 
jury  to  understand  by  these  generalities  it  is  not  very  easy  to  see 
thus  far.  But  the  next  sentence  enables  us,  perhaps,  to  gather 
the  application  of  the  remarks  quoted.  He  summed  up  the  point 
to  the  jury  in  these  words:  "The  question  on  the  indictment  is, 
nuisance  or  no  nuisance,  and  if  the  nuisance  be  proved,  then  the 
next  question  is,  who  caused  it,  or  procured  it  to  be  done?"  He 
then  instructs  the  jury  that  in  misdemeanors  all  who  participate 
are  principals  in  the  act,  and  adds,  "relatively  all  citizens  of  com- 
munity have  rights  for  the  use  and  enjoyment  of  the  common  air 
in  as  pure  a  state  as  the  ordinary  transactions  of  men  permit." 

The  theory  of  all  this  is,  that  though  the  hospital  was  properly 
located,  and  burning  the  best  means  to  destroy  the  infected 
articles  of  clothing,  and  the  like,  under  the  circumstances,  yet  if 
in  doing  it  the  air  was  rendered  less  pure  than  by  the  ordinary 
transactions  of  men,  the  defendants  were  guilty,  and  should  be 
convicted  of  the  nuisance  charged.  This,  under  his  previous 
definition  of  a  nuisance,  as  "that  which  incommodes  or  annoys, 
something  which  produces  inconvenience  or  damage,"  left  the 
jury  nothing  to  do  but  find  this  inconvenience  or  annoyance,  and 
if  so,  then  a  verdict  of  guilty  must  follow. 

This  is  made  stronger  and  clearer  by  his  refusal  to  charge  as 
requested  by  defendant's  counsel  in  the  first  request  made,  which 
was  substantially  that  if  the  burning  "of  the  infected  clothing 
which  had  been  used  by  persons  afflicted  with  small-pox,  at  or 


134  NATURE   AND   ELEMENTS. 

near  the  hospital  grounds,  was  reasonably  necessary  to  prevent 
the  spread  of  the  disease,  and  if  done  in  a  place  reasonably  re- 
mote from  human  habitation,  then  the  mere  smoke  and  smell 
arising  from  the  burning  of  such  clothing,  although  it  may  have 
been  a  temporary  and  slight  inconvenience  to  such  of  the  people 
as  may  be  living  in  the  neighborhood,  would  not,  under  these  cir- 
cumstances, be  an  indictable  nuisance.  This  request  is  sound  law, 
as  we  think.  Refusing  this  request,  and  charging  as  he  did,  in- 
volved the  proposition  that  means  reasonably  adopted  to  prevent 
the  spread  of  the  disease  could  not  be  used  if  it  produced  tem- 
porary inconvenience  to  persons  resident  near  where  the  means 
were  thus  being  used. 

In  this  his  Honor  clearly  erred — all  the  rules  of  our  law  that 
rest  on  the  idea  of  restraint  or  limitation  placed  upon  the  rights 
of  the  individual,  where  the  interest  of  the  public  are  to  be  ad- 
vanced or  protected,  are  based  on  the  opposite  theory  from  what 
is  thus  announced  by  his  Honor. 

The  general  principle  resulting  from  the  decided  cases  is  thus 
given  by  Judge  Cooley,  Const.  Lim.,  5th  ed.,  739:  "It  would," 
he  says,  "be  quite  impossible  to  enumerate  all  the  instances  in 
which  the  police  power  is  or  may  be  exercised,  because  the 
various  cases  in  which  the  exercise  by  one  individual  of  his  rights 
may  conflict  with  a  similar  exercise  by  others,  or  may  be  detri- 
mental to  the  public  order  or  safety,  are  infinite  in  number  and 
variety.  And  there  are  other  cases  where  it  becomes  necessary 
for  the  public  authorities  to  interfere  with  the  control  by  in- 
dividuals of  their  property,  and  even  destroy  it,  where  the 
owners  themselves  have  fully  observed  all  their  duties  to  their 
fellows  and  to  their  State,  but  where,  nevertheless,  some  con- 
trolling public  necessity  demands  the  interference  or  destruction. 
A  strong  instance  of  this  description  is  where  it  becomes  necessary 
to  take  or  destroy  the  private  property  of  individuals  to  prevent 
the  spreading  of  a  fire,  the  ravages  of  a  pestilence,  the  advance 
of  a  hostile  army,  or  any  great  public  calamity.  Here  the  in- 
dividual is  in  no  default,  but  his  interest  must  yield  to  that  neces- 
sity which  knows  no  law." 

The  principle  thus  stated  is  sound  and  applicable  to  the  case  in 
hand.  The  proof  very  definitely  tended  to  show  that  burning  the 
articles  mentioned  was  the  best  means  known  of  preventing  the 


STATE   V.   MAYOR   AND  ALDERMEN   OF   KNOXVILLE.  135 

spread  of  infection,  if  not  the  only  certain  means  of  doing  so, 
that  it  was  the  uniform  practice  in  hospitals,  where  such  diseases 
were  being  treated  and  recognized  as  the  accredited  mode  recom- 
mended and  endorsed  by  the  best  lights  of  the  medical  profession. 

If  this  be  so,  then  the  simple  question  is,  whether  parties  using 
such  means  so  accredited,  in  good  faith,  shall  be  held  criminally 
liable  if  they  should  produce  temporary  inconvenience  to  other 
parties  near  by,  for  this  is  the  substance  of  the  request  refused  by 
his  Honor. 

The  loss  to  the  individuals  was  only  a  temporary  one  by  having 
the  air  for  a  time  impregnated  with  smoke,  offensive  though  it 
was,  yet  if  this  was  done  in  order  to,  and  did  reasonably  tend  to, 
prevent  the  spread  of  a  loathsome  and  dangerous  disease,  by 
which  the  lives  of  from  twenty-five  to  fifty  per  cent,  of  persons 
attacked  are  liable  to  die,  as  one'  physician  swears  in  this  case, 
then  it  is  too  clear  to  doubt  that  the  interest  of  the  life  of  many 
cannot  be  permitted  to  be  periled  that  others  may  enjoy  the  air 
untainted  by  smoke  from  clothing  infected  by  the  disease,  being 
burned  at  a  reasonably  safe  distance  from  their  dwellings.  If 
you  may  rightfully  destroy  the  house  in  which  a  man  dwells  in 
order  to  prevent  the  spread  of  a  fire  or  the  ravages  of  a  pestilence, 
it  follows  you  may  much  more  destroy  for  a  time  the  salubrity 
of  the  air,  provided  it  shall  tend  reasonably  to  the  result  de- 
manded by  the  public  interest. 

We  do  not  deem  it  necessary  to  enlarge  on  such  a  proposition. 

The  rule  applicable  to  such  a  case  is,  that  if  the  act  was  done 
by  public  authority  or  sanction,  and  in  good  faith,  and  was  done 
for  the  public  safety,  and  to  prevent  the  spread  of  the  disease, 
and  such  means  used  as  are  usually  resorted  to  and  approved  by 
medical  science  in  such  cases,  and  was  done  with  reasonable  care 
and  regard  for  the  safety  of  others,  then  the  parties  were  justified 
in  what  they  did,  and  the  parties  inconvenienced  could  not  com- 
plain, nor  could  the  State  enforce  a  criminal  liability  for  results 
of  temporary  inconvenience  or  unpleasantness  that  accrue  from 
the  use  of  such  proper  and  accredited  means  for  the  safety  of  the 
community  against  the  spread  of  disease. 

The  theory  of  his  Honor  is  the  opposite  of  this,  and  is  er- 
roneous. Let  the  judgment  be  reversed  and  the  case  remanded 
for  a  new  trial. 

Cooley  Const.  Lira.  5th  Ed.  739. 


136  NATURE   AND   ELEMENTS. 


3.  ACT. 

The  wrongful  intent  must  manifest  itself  in  a  wrongful 
overt  act ;  and  the  intent  and  act  must  concur. 

YOES  v.  THE  STATE. 

Supreme  Court  of  Arkansas,  1848. 
9  Ark.  42. 

ENOS  YOES  was  indicted  in  the  Washington  Circuit  Court  for 
an  assault  and  battery  upon  James  C.  Hughs.  He  was  tried  on 
the  plea  of  not  guilty,  at  the  May  Term,  1847,  before  the  Hon. 
Wm.  W.  Floyd,  judge,  convicted  and  fined  ten  dollars.  Pending 
the  trial,  he  took  a  bill  of  exceptions,  from  which  it  appears: 

The  said  Hughs,  sworn  as  a  witness  for  the  State,  testified  that 
on  the  28th  July,  1848,  he  was  at  a  place, in  Washington  County, 
where  there  was  a  meeting — was  some  eighty  yards  from  the 
m'eeting  house,  when  defendant  came  up,  and  said  he  wished  to 
speak  to  him,  and  called  him  aside — he  followed;  defendant  and 
he  conversed  for  some  time,  when  defendant  gave  witness  the  lie, 
or  witness  gave  him  the  lie ;  defendant  kicked  witness,  he  struck 
defendant,  and  then  they  fought. 

Being  interrogated  thereto,  by  defendant's  counsel,  witness 
denied  that  he  had,  on  the  same  evening,  after  the  fight,  at  night 
meeting,  told  one  Tulk  that  when  defendant  gave  him  the  lie, 
he  threw  off  his  hat  and  attempted  to  collar  defendant — witness 
was  positive  that  he  had  told  Tulk  no  such  thing. 

Another  witness  for  the  State  testified  that  he  was  present, 
heard  defendant  call  Hughs  out — thought  defendant  was  in  an 
ill  humor — presently,  he  heard  a  noise  like  a  kick,  looked  and 
saw  Hughs  and  defendant  fighting,  but  did  not  know  which  com- 
menced the  fight. 

Another  witness  heard  defendant  say  to  Hughs,  "Come  this 
way,  I  wish  to  speak  to  you,"  and  soon  afterwards  saw  them  fight- 
ing, but  did  not  know  who  began  it. 

Tulk,  witness  for  defendant,  testified,  that  on  the  evening 
after  the  fight,  at  night  meeting,  and  just  about  sun-down,  said 


YOE8   V.   THE   STATE.  137 

Hughs  told  him  that  defendant  gave  him  (Hughs)  the  lie,  and 
that  he  (Hughs)  threw  off  his  hat  and  attempted  to  collar  de- 
fendant, when  defendant  kicked  him.  Witness  was  present 
when  defendant  called  Hughs  out,  but  did  not  know  which  com- 
menced the  fight. 

This  being  all  the  testimony,  the  State's  Attorney  asked  the 
court  to  charge  the  jury  "that  if  they  believed,  from  the  evi- 
dence, that  defendant  went  to  the  meeting-house  yard,  and  called 
Hughs  out  for  the  purpose  of  having  a  difficulty  with  him,  they 
must  find  defendant  guilty."  Also,  "if  the  jury  believed  from 
the  evidence,  that  Hughs  made  a  different  statement  about  the 
difficulty  to  Tulk,  to  that  which  he  now  makes,  they  will  not 
disregard  Hughs'  testimony,  unless  they  believed  the  different 
statements  were  made  willfully  and  knowingly." 

To  the  giving  of  which  instructions,  the  defendant  objected, 
but  the  court  gave  them,  and  he  excepted. 

JOHNSON,  C.  J.  The  Circuit  Court  manifestly  erred  in  giving 
the  first  instruction  asked  by  the  State.  The  instruction  is,  that 
if  the  jury  believe  from  the  evidence  that  the  defendant  went 
to  the  meeting-house  yard  and  called  Hughs  out  for  the  purpose 
of  having  a  difficulty  with  him,  they  should  find  him  guilty.  A 
crime  or  misdemeanor  consists  in  a  violation  of  public  law,  in  the 
commission  of  which  there  must  be  a  union  or  joint  operation  of 
act  and  intention  or  criminal  negligence.  See  1st  Sec.  of  Chap. 
44  of  the  Revised  Statutes.  The  mere  fact  of  going  to  a  place 
with  the  intention  of  doing  an  unlawful  act,  will  not  of  itself  sub- 
ject the  party  to  the  punishment  denounced  against  such  act  un- 
less he  also  carries  his  intention  into  effect.  If  the  defendant 
below  actually  made  an  assault  upon  Hughs  in  pursuance  of  his 
preconceived  and  settled  intention,  then  it  was  that  the  motives, 
which  induced  him  to  go  to  the  place  where  Hughs  was,  might 
have  been  legitimately  inquired  into  in  aggravation  of  the  fine, 
but  could  not  under  any  state  of  case  have  furnished  conclusive 
evidence  of  his  guilt.  No  valid  objection  is  perceived  to  the  last 
instruction.  But  for  the  error  in  giving  the  first,  the  judgment 
must  be  reversed. 

Stein  v.  State,  37  Ala.  123;  Riley  v.  State,  16  Conn.  47;  Slattery  v.  Peo- 
ple, 76  111.  218;  Falrlee  v.  People,  11  111.  1;  People  v.  White,  34  Cal.  183; 


138  NATURE   AND   ELEMENTS. 

People  r.  Harris,  29  Cal.  670;  People  v.  Anderson,  14  John  294;  People 
v.  Cogdell,  1  Hill  94;8tate  v.  Dean,  49  la.  73;  State  v.  Wood,  46  la.  116; 
Bishop  I.,  Sec.  204;  Hawley  &  McGregor,  p.  3. 


Individual. 

The  act  may  be  done  by  one  individual,  when  it  is  called 
an  individual  criminal  act. 

b. 
Joint. 

The  act  may  be  committed  by  many  joining  in  a  united 
plan,  or  in  furtherance  of  a  common  effort,  and  is  then  a 
joint  criminal  act,  and  each  is  punishable  for  all  that  is  done. 

WILLIAMS  v.  THE  STATE. 

Supreme  Court  of  Alabama,  1887. 
81  Ala.  1;  1  So.  179. 

INDICTMENT  for  murder. 

The  grand  jury  of  Bar  hour  County,  at  the  Fall  Term,  1886, 
found  a  true  bill  against  John  Williams,  Shade  Scarbrough, 
Tiola  Scarbrough,  Dennis  Williams,  Jim  Williams,  Will  Wil- 
liams, and  Back  Lampley,  charging  them  with  the  murder  of 
Madison  Ceasar,  by  shooting  him  with  a  pistol.  Said  parties,  ex- 
cept the  last  mentioned,  were  tried  on  December  4,  1886.  The 
result  of  the  trial  was  that  Shade  Scarbrough  was  found  guilty 
of  murder  in  the  first  degree,  and  sentenced  to  be  hanged;  John 
and  Dennis  Williams  were  found  guilty  of  murder  in  the  second 
degree,  and  sentenced  each  to  the  penitentiary  for  40  years;  and 
Jim  and  Will  Williams  and  Tiola  Scarbrough  were  found  guilty 
of  murder  in  the  second  degree,  and  sentenced  each  to  the  pen- 
itentiary for  20  years.  The  judgment  of  the  court  was  stayed  to 
await  the  result  of  this  appeal. 


WILLIAMS   V.   THE   STATE.  139 

The  testimony  in  this  cause,  as  shown  by  the  record,  tended  to 
show  that  the  deceased  came  to  his  death  by  a  pistol  shot  on  the 
6th  of  July,  1886,  about  11  o'clock  at  night;  that  a  difficulty  took 
place  at  about  3  o'clock,  on  the  afternoon  of  said  day,  at  the  cot- 
ton-house on  the  Parish  plantation,  between  Jim  Williams,  one 
of  the  defendants,  and  another  party;  that  among  those  present 
was  John  Williams,  one  of  the  defendants,  who  had  a  gun,  and 
whom  deceased  ordered  off;  that  different  ones  of  the  defendants 
were  together  during  the  afternoon  talking  about  Madison  Ceasar, 
the  deceased,  in  a  threatening  and  unfriendly  manner;  that  dur- 
ing said  night  they  were  all  at  the  house  of  deceased. 

One  Britt  testified  that  he  was  at  his  own  house  asleep,  was 
awakened  by  hearing  Madison  Ceasar's  wife  calling  him,  and  got 
up  and  went  to  his  house ;  that  he  found  John  Williams  and  Back 
Lampley  at  the  gate,  who  cut  at  him,  and  tried  to  prevent  his 
going  in;  that  Dennis,  Jim,  and  Will  Williams,  and  Tiola  Scar- 
brough  came  out  of  the  house  and  tried  to  prevent  his  going  in, 
but  he  forced  his  way  in,  and  found  deceased  and  Shade  Scar- 
brough  sitting  before  the  fire.  Shade  threw  something  into  his 
face  which  he  took  to  be  a  pistol,  and  asked:  "Who  is  that?"  Wit- 
ness answered:  "Shade,  this  is  Joe  Britt."  The  parties  outside 
then  coming  in,  Shade  told  them  not  to  hurt  witness,  as  he  was 
his  friend.  Shortly  afterwards  deceased  left  the  house,  but  re- 
turned in  about  half  an  hour,  with  a  gun.  He  called  for  Shade 
from  the  back  door,  who  asked  what  he  wanted,  and,  receiving 
no  answer,  said  he  would  be  there  directly.  Just  before  Shade 
went  out  he  said:  "Dennis,  you  go  round  the  house;  I  will  go 
round  by  the  chimney."  They  both  went  out  to  the  front,  and 
deceased  came  in  from  the  back  door,  with  a  gun  in  his  hand.  A 
struggle  ensued  for  possession  of  the  gun,  which  was  continued 
into  an  adjoining  room.  Shade  having  returned,  went  into  the 
latter  room,  where  he  shot  deceased  twice,  killing  him. 

A  witness  testified  that,  after  the  killing,  she  met  all  of  said 
parties  in  the  road,  about  100  yards  from  the  house  of  deceased; 
that  Shade  was  staggering,  and  seemed  drunk;  that  she  asked 
what  was  the  shooting  about,  and  Shade  replied  that  he  "did  it; 
that  he  had  shot  Madison  Ceasar;  that  he  didn't  have  a  thing  in 
the  world  against  him."  She  replied,  "You  are  joking."  He 
answered,  "No."  She  asked,  "What  for?"  and  he  said,  "John  and 


140  NATURE   AND   ELEMENTS. 

these  boys  got  me  to  do  it."  John  said,  "Hush!"  and  the  others 
said  nothing.  The  defendants  drank  together  during  the  evening. 

The  defendants  moved  to  exclude  these  declarations,  which  the 
court  overruled. 

The  court,  at  the  request  of  the  State,  gave  the  following 
charge:  "If  the  defendants  entered  into  a  conspiracy  to  assault 
and  beat  or  to  kill  Madison  Ceasar,  in  this  county,  and  before  the 
finding  of  this  indictment;  and,  in  pursuance  of  the  common  de- 
sign to  either  assault  and  beat  or  kill  Madison  Ceasar,  Shade 
Scarbrough  killed  Madison  Ceasar,  *  *  the  defendants 

being  near  at  hand,  by  shooting  him  with  a  pistol,  in  his  own 
house,  and  not  in  self-defence, — the  jury  cannot  acquit  any  of 
said  defendants."  An  exception  was  duly  reserved  to  the  giving 
of  this  charge  by  each  of  said  defendants. 

The  defendant,  Shade  Scarbrough,  in  writing,  requested  the 
court  to  give  the  following  charge,  among  others:  "(4)  If  the 
jury  believe  from  the  evidence  that  Shade  Scarbrough  was  drunk 
at  the  time  of  the  shooting,  they  may  further  believe  that  he  may 
have  been  in  such  a  state  of  mind  as  to  be  totally  incapable  of 
entertaining  and  forming  the  positive  and  particular  intent  re- 
quisite to  constitute  the  offence  of  murder;  and,  if  they  so  be- 
lieve, the  defendant  is  entitled  to  an  acquittal  of  any  felony,  not 
because  of  the  drunkenness,  but  because  he  was  in  such  a  state 
of  mind,  resulting  from  drunkenness,  that  will  negative  the  facts 
necessary  to  a  conviction."  The  court  refused  to  give  this 
charge  to  which  action  of  the  court  an  exception  was  duly  re- 
served. 

The  first  charge  requested  by  John  Williams  was:  "(1.) 
Conspire  means  to  breathe  together.  A  conspiracy  to  commit  an 
offence  is  where  two  or  more  persons  agree  together  to  do  an 
unlawful  act.  Unless  the  jury  believe,  in  this  case,  from  the 
evidence,  beyond  all  reasonable  doubt,  that  John  Williams,  prior 
to  the  homicide,  agreed  or  conspired  with  Shade  Scarbrough,  or 
any  other  one  of  the  participants  in  this  killing,  to  take  the  life 
of  Madison  Ceasar,  or  to  do  him  some  bodily  hurt,  then  they 
must  find  John  Williams  not  guilty,  and  in  coming  to  a  con- 
clusion upon  this,  they  can  look  only  to  the  evidence  touching 
John  Williams.  They  can't  look  to  the  fact,  if  it  be  a  fact,  that 
Madison  Ceasar  was  killed  by  any  one's  hands,  unless  the  act  of 


WILLIAMS  V.   THE  STATE.  141 

killing  connects  John  Williams  with  the  killing,  or  to  do  the 
deceased  bodily  hurt."  The  court  refused  this  charge,  and  an  ex- 
ception was  reserved. 

SOMEBVILLE,  J.  1.  The  question  most  pressed  on  our  atten- 
tion, and  the  one  of  controlling  influence  on  the  merits  of  this 
case,  is  raised  by  the  first  charge  given  by  the  court  at  the  instance 
of  the  State.  This  charge  asserts,  in  substance,  that,  if  the  defend- 
ants, all  entered  into  a  conspiracy  to  assault  and  beat  or  to  kill 
the  deceased,  and,  in  pursuance  of  such  common  design,  one  of 
said  defendants  did  kill  deceased  by  shooting  him  with  a  pistol, 
in  his  own  house,  and  not  in  self-defence,  the  other  defendants 
then  being  near  at  hand,  all  of  the  defendants  would  be  guilty 
of  murder.  Other  charges  asserting  the  converse  of  this  were 
requested  by  the  defendant,  and  refused  by  the  court. 

It  must  be  kept  in  mind  that  the  defendants  are  not  indicted 
in  this  case  merely  for  a  conspiracy  to  commit  murder,  but  as 
principals  in  the  crime  of  murder  itself.  Nor  is  the  case  com- 
plicated by  any  inquiry  as  to  distinctions  between  accessories  be- 
fore the  fact  and  principals  in  crime,  or  principals  in  the  first  and 
second  degree;  the  statutes  of  this  State  having,  in  cases  of 
felony,  abolished  the  common-law  distinction  in  this  particular 
by  providing  that  "all  persons  concerned  in  the  commission  of  a 
felony,  whether  they  directly  commit  the  act  constituting  the 
offence,  or  aid  or  abet  in  its  commission,  though  not  present,"  are 
authorized  to  be  indicted,  tried,  and  punished  as  principals.  Code 
1876,  Sec.  4802;  Hughes  v.  State,  75  Ala.  31. 

The  general  rule  is  familiar  that,  where  several  parties  con- 
spire or  combine  together  to  commit  any  unlawful  act,  each  is 
criminally  responsible  for  the  acts  of  his  associates  or  confeder- 
ates committed  in  furtherance  or  in  prosecution  of  the  common 
design  for  which  they  combine.  The  point  of  difficulty  arises  in 
applying  this  general  principle,  when  it  is  sought  to  ascertain 
what  particular  acts  come  within  or  are  departures  from  the 
common  design  or  plan.  It  is  very  clear  that  one  may  often  be 
responsible  for  an  act,  committed  either  by  himself  or  by  a  con- 
federate, which  he  did  not  specifically  intend  to  commit.  A 
common  example  is  found  in  the  case,  often  adjudged,  where  one 
who  commits  a  mere  civil  trespass  by  shooting  at  another's  fowls, 


142  NATURE   AMD   ELEMENTS. 

wantonly  or  in  sport,  may  be  held  guilty  of  manslaughter  when 
the  death  of  a  human  being  accidentally  ensues;  and,  if  his  in- 
tent was  to  steal  the  fowls,  then  of  murder,  although  he  did  not 
specifically  intend  homicide  in  either  case.  So  the  case  is  put  by 
Mr.  East,  if  one  willfully,  with  intent  to  hurt,  throw  a  large  stone 
at  another,  and  by  accident  kill  him,  this  is  murder;  but  if  the 
stone  is  small,  and  not  likely  to  produce  death,  it  would  seem  to 
be  manslaughter.  1  East,  P.  C.  257.  It  is  thus  an  important  rule, 
as  we  shall  more  fully  show,  that  the  responsibility  for  incidental 
and  often  for  accidental  results  broadens  with  the  magnitude  or 
heinousness  attached  to  the  unlawful  act  specifically  agreed  to  be 
perpetrated.  This  is  upon  the  principle  that  every  one  is  pre- 
sumed to  intend,  and  therefore  must  be  held  responsible  for,  the 
natural  and  probable  consequences  of  his  own  acts.  It  neces- 
sarily follows  that,  where  one  person  combines  with  another  to  do 
an  unlawful  act,  he  impliedly  consents  to  the  use  of  such  means 
by  his  confederate  as  may  be  necessary  or  usual  in  the  successful 
accomplishment  of  such  an  act.  The  more  flagrant  and  vicious  the 
act  agreed  to  be  done,  the  wider  is  the  latitude  of  the  agency  im- 
pliedly conferred  to  execute  it. 

The  rule  of  criminal  responsibility,  in  cases  of  conspiracy  or 
combination,  seems  to  be  that  each  is  responsible  of  everything 
done  by  his  confederates  which  follows  incidentally,  in  the  execu- 
tion of  the  common  design,  as  one  of  its  probable  and  natural 
consequences,  even  though  it  was  not  intended  as  a  part  of  the 
original  design  or  common  plan.  1  Whart.  Grim.  Law  (9th  Ed.), 
Sees.  214,  220.  In  other  words,  the  act  must  be  the  ordinary 
and  probable  effect  of  the  wrongful  act  specifically  agreed  on,  so 
that  the  connection  between  them  may  be  reasonably  apparent, 
and  not  a  fresh  and  independent  product  of  the  mind  of  one  of 
the  confederates,  outside  of  or  foreign  to  the  common  design. 
Nor  must  it  have  been  committed  by  one  of  the  confederates 
after  the  explosion  of  the  plot,  or  the  abandonment  of  the 
common  design,  or  from  causes  having  no  connection  with  the 
common  object  of  the  conspirators.  1  Bish.  Grim.  Law  (7th  Ed.), 
Sees.  640,  641;  1  Whart.  Grim.  Law,  Sec.  397;  Lamb  v.  People, 
96  111.  73;  S.  C.  2  Grim.  Law  Mag.  472;  Ruloff  v.  People,  45 
N.  Y.  213;  Thompson  v.  State,  25  Ala.  41;  Frank  v.  State,  27 
Ala.  37. 


WILLIAMS   V.   THE   STATE.  143 

The  application  of  the  rule  to  cases  of  homicide  is  made  in  1 
Hale,  P.  C.  441,  where  it  is  said:  "If  divers  persons  come  in  one 
company  to  do  an  unlawful  thing,  as  to  kill,  rob,  or  beat  a  man, 
or  to  commit  a  riot,  or  to  do  any  other  trespass,  and  one  of  them, 
in  doing  thereof,  kill  a  man,  this  shall  be  adjudged  murder  in 
them  all  that  are  present  of  that  party  abetting  him,  and  con- 
senting to  the  act,  or  ready  to  aid  him,  although  they  did  but 
look  on."  And  the  following  language  is  used  in  1  East,  P.  C. 
257:  "Where  divers  persons  resolve  generally  to  resist  all  op- 
posers  in  the  commission  of  any  breach  of  the  peace,  and  to 
execute  it  with  violence,  or  in  such  a  manner  as  naturally  tends 
to  raise  tumults  and  affrays, — as  by  committing  a  violent  dis- 
seizen  with  great  numbers,  or  going  to  beat  a  man,  or  rob  a  park, 
or  standing  in  opposition  to  the  sheriff's  posse, — they  must  at 
their  peril  abide  the  result  of  their  actions." 

It  has  long  been  a  rule  of  law,  now  often  repeated  by  the  text 
writers,  that  "if  A.  command  B.  to  beat  C.,  so  as  to  inflict 
grievous  bodily  harm,  and  he  beat  C.  so  that  C.  dies,  A.  is  an  ac- 
cessory to  the  murder,  if  the  offence  be  murder  in  B."  1  Whart. 
Crim.  Law,  Sec.  225;  1  Hale,  617.  The  line  of  distinction  here 
is  narrow,  as  appears  from  the  proposition  announced  by  Mr. 
Bishop,  in  support  of  which  there  are  many  adjudged  cases. 
"If,"  he  says,  "two  combine  to  fight  a  third  with  fists,  and  death 
accidentally  results  from  a  blow  inflicted  by  one,  the  other  also 
is  responsible  for  the  homicide;  but,  if  one  resorts  to  a  deadly 
weapon  without  the  other's  knowledge  or  consent,  he  only  is  thus 
liable."  1  Bish  Crim.  Law  (7th  Ed.),  Sec.  637;  Reg.  v.  Caton,  12 
Cox,  Crim.  Cas.  624;  S.  C.  10  Eng.  R.  506.  The  implied  agree- 
ment here  is  evidently  not  to  resort  to  the  use  of  a  deadly 
weapon,  and  the  use  of  such  weapon  is  therefore  foreign  to  the 
contemplation  of  the  parties,  and  a  departure  from  the  common 
design.  It  is  said  by  some  of  the  standard  authors  that,  if  the 
specific  act  agreed  to  be  done  was  malum  in  se,  the  responsibility 
for  unintended  results  would  embrace  acts  arising  from  misfor- 
tune or  chance;  but  otherwise,  if  such  specific  act  was  malum 
prohibitum  merely,  or  lawful.  1  Bish.  Crim.  Law  (7th  Ed.),  Sec. 
331;  Archb.  New  Crim.  Proc.  9.  In  some  cases  the  distinction  is 
taken  that,  where  persons  unlawfully  conspire  to  commit  a  tres- 
pass only,  to  make  all  the  confederates  guilty  of  murder  the 


144  NATURE   AND   ELEMENTS. 

death  must  ensue  in  the  prosecution  of  the  design.  If  the  unlaw- 
ful act  be  a  felony,  or  be  more  than  a  trespass,  it  will  be  murder 
in  all,  "although  the  death  happened  collaterally,  or  besides  the 
original  design."  State  v.  Shelledy,  8  Iowa,  478.  In  another  re- 
cent case  the  rule  was  announced  that  "if  the  unlawful  act  agreed 
to  be  done  is  dangerous  or  homicidal  in  its  character,  or  if  its 
accomplishment  will  necessarily  or  probably  require  the  use  of 
force  and  violence,  which  may  result  in  the  taking  of  life  unlaw- 
fully, every  party  to  such  agreement  will  be  held  criminally  lia- 
ble for  whatever  any  of  his  co-conspirators  may  do  in  furtherance 
of  the  common  design,  whether  he  is  present  or  not."  Lamb  v. 
People,  96  111.  73. 

The  question  in  this  case,  then,  would  seem  to  be  whether,  if 
five  or  six  men  combine  together  to  invade  a  man's  household, 
and  they  go  there  armed  with  deadly  weapons  for  the  purpose  of 
attacking  and  beating  him,  and,  in  furtherance  of  this  common 
design,  all  of  the  confederates  being  present  or  near  at  hand,  one 
of  them  gets  into  a  difficulty  with  their  common  adversary,  and 
kills  him,  all  may  not  be  guilty  of  murder,  although  they  did  not 
all  entertain  a  purpose  to  kill.  The  question,  we  think,  must 
be  answered  in  the  affirmative,  in  the  light  of  both  principle  and 
authority.  Every  man  has  the  right  to  defend  his  house  against 
every  unlawful  invasion,  and  to  defend  his  person,  when  within 
it,  against  every  and  all  violence,  without  the  necessity  of  retreat. 
The  experience  of  mankind  shows  that  very  few  men  will  fail 
to  respond  to  instinct  by  exercising  this  right  to  the  extent  even 
of  killing  an  assailant  if  necessary.  When  a  mob,  conspiring  to- 
gether unlawfully,  go  to  a  man's  house  to  do  any  serious  violence 
to  his  person,  especially  in  the  night-time,  as  here,  they  can  ex- 
pect nothing  else  than  to  meet  with  armed  opposition,  and  the 
inference  is  not  unreasonable  that  they  intend  nothing  less  than 
to  oppose  force  to  force,  in  the  furtherance  of  their  design.  The 
natural  and  probable  consequence  of  this  is  homicide, — either  of 
one  or  more  of  the  assailants,  or  of  the  party  thus  assailed, — and 
such  homicide,  when  committed  by  any  one  of  the  conspirators, 
can  be  nothing  less  than  murder  in  all  who  combine  to  commit 
the  unlawful  act  of  violence,  especially  if  they  be  near  at  hand, 
inciting,  procuring,  or  encouraging  the  furtherance  of  the  act  of 
assault  and  battery. 


WILLIAMS  V.   THE  STATE.  145 

The  adjudged  cases  sustain  this  view,  some  of  which  we  pro- 
ceed to  cite. 

In  Peden  v.  State,  61  Miss.  268,  the  precise  question  was 
presented  and  decided.  There  several  persons  conspired  together 
to  take  one  Walker  from  his  house  and  whip  him.  He  was  ac- 
cordingly taken  from  his  bed  and  severely  beaten,  and  in  execut- 
ing this  design  one  of  the  confederates  struck  him  a  fatal  blow 
with  a  spade,  from  which  he  died.  It  was  held  that  all  were  guilty 
of  murder,  whether  they  entertained  a  purpose  to  kill  Walker 
or  not. 

In  Brennan  v.  People,  15  111.  512,  where  a  large  number  of 
defendants  were  indicted  for  the  murder  of  one  Story,  instruc- 
tions were  asked  which  required  the  jury  to  acquit  the  prisoners 
unless  they  actually  participated  in  the  killing  of  deceased,  or  un- 
less the  killing  happened  in  pursuance  of  a  common  design,  on 
the  part  of  the  prisoners  and  those  doing  the  act,  to  take  his  life. 
The  court  said:  "Such  is  not  the  law.  The  prisoners  may  be 
guilty  of  murder,  although  they  neither  took  part  in  the  killing, 
nor  assented  to  any  arrangement  having  for  its  object  the  death 
of  Story.  It  is  sufficient  that  they  combined  with  those  commit- 
ting the  deed  to  do  an  unlawful  act,  such  as  to  beat  or  rob  Story, 
and  that  he  was  killed  in  the  attempt  to  execute  the  common  pur- 
pose. If  several  persons  conspire  to  do  an  unlawful  act,  and  death 
happens  in  the  prosecution  of  the  common  object,  all  are  alike 
guilty  of  the  homicide." 

In  Shelledy's  Case,  8  Iowa,  478,  the  defendants  had  taken  one 
Wilkinson,  and,  after  tying  him  with  a  rope,  put  him  in  a  carriage, 
started  with  him  to  the  woods,  making  menaces  of  violence 
against  him,  by  which  he  was  induced  to  jump  from  the  vehicle 
into  a  river,  and  was  drowned,  no  effort  being  made  to  rescue 
him.  It  was  held  that  all  the  confederates  might  be  properly  con- 
victed of  murder,  although  some  of  them  designed  only  to 
commit  personal  violence  on  the  deceased,  without  intending  to 
kill  him. 

In  Miller  v.  State,  25  Wis.  384,  the  wife  of  the  defendant, 
without  fear  or  compulsion  from  him,  agreed  with  him  to  go  to 
the  store  of  one  Wright,  the  deceased,  and  to  rob  it ;  the  husband 
telling  her,  and  she  believing,  that  he  did  not  intend  to  kill 
Wright,  but  only  to  knock  him  down  so  as  to  stun  him,  in  order 
10 


146  NATURE  AND   ELEMENTS. 

to  consummate  the  robbery.  They  went  together,  and  the  hus- 
band, in  carrying  out  the  plan,  gave  the  deceased  a  fatal  blow, 
the  wife  giving  no  intentional  assistance.  A  charge  was  sustained 
which  justified  the  jury,  under  this  state  of  facts,  in  finding  her 
guilty  of  murder. 

In  Miller  v.  State,  15  Tex.  App.  125,  the  evidence  tended  to 
show  that  the  defendant  and  two  others  by  the  name  of  Harden 
acted  together  in  provoking  a  contest  with  deceased,  one  Linson, 
either  with  the  purpose  of  killing  him,  or  of  doing  him  some 
serious  bodily  harm,  and  in  pursuance  of  this  common  design  one 
of  the  Hardens,  in  the  presence  of  the  defendant,  shot  and  killed 
deceased.  It  was  held  that,  if  the  jury  believed  the  evidence, 
they  could  lawfully  find  the  defendant  guilty  as  a  principal  in 
the  act  of  murder. 

In  Ferguson  v.  State,  32  Ga.  658,  the  defendant  was  convicted 
of  robbery.  The  facts  were  that,  having  effected  escape  from  his 
own  cell  in  a  jail,  the  defendant  had  broken  the  locks  off  the 
doors  of  other  cells,  the  inmates  of  which,  so  soon  as  the  jailer 
made  his  appearance,  set  upon,  bound,  and  blindfolded  him,  and 
then  some  of  them  proceeded  to  rob  him.  The  trial  court  refused 
to  charge  the  jury  that  the  prisoner  could  not  be  convicted  of 
robbery  if  he  was  unaware  of  the  intent  to  rob;  but  that  it  was 
sufficient  if  the  prisoner  conspired  with  the  others  to  effect  an 
escape,  and  that  the  robbery  charged  was  in  furtherance  of  this 
design,  the  prisoner  being  near  enough  at  hand  to  render  assist- 
ance to  those  actually  committing  the  felony. 

Under  the  foregoing  authorities  we  are  of  opinion  that  the 
rulings  of  the  court,  on  this  particular  branch  of  the  law,  were 
free  from  all  error. 

The  case  of  State  v.  Absence,  4  Port.  (Ala.)  397,  is  not  in  con- 
flict with  this  view.  There  the  defendant  had  participated  in  an 
assault  and  battery  committed  in  a  personal  rencounter  between 
one  "Weaver  and  one  Mosely,  only  so  far  as  to  push  the  former 
toward  the  latter  for  the  purpose  of  causing  a  fight  between 
them.  A  fight  ensued,  in  the  progress  of  which  Mosely  committed 
mayhem  on  the  person  of  Weaver  by  biting  off  his  right  ear, 
which  was  a  felony.  A  charge  was  held  erroneous  that,  under 
this  state  of  facts,  Absence  would  necessarily  be  guilty  of  may- 
hem without  participation  in  the  felonious  intent  of  Mosely.  It 


WILLIAMS   V.   THE  STATE.  147 

was,  however,  left  an  open  question  in  that  case  whether,  if  two 
or  more  persons  should  agree  together  to  do  some  great  bodily 
harm  to  another,  and  one  of  them  committed  mayhem  on  the 
party  beaten,  all  who  are  present  would  not  be  guilty  of  the  may- 
hem. It  may  be  remarked  that  Mr.  Bishop  criticises  this  case  as 
doubtful,  and  Mr.  Wharton  thinks  it  erroneous.  1  Bish.  Grim. 
Law  (7th  Ed.),  Sec.  635;  1  Whart.  Grim.  Law  (9th  Ed.),  Sec. 
214,  note  1. 

2.  There  is  no  error  in  the  refusal  of  the  court  to  quash  the 
venire.  The  name  of  R.  C.  Stanley  appeared  on  the  original  list 
of  jurors.    On  the  copy  served  on  the  defendant  the  name  was 
written  D.  C.  Stanley     This  was  a  mere  mistake  or  discrepancy 
in  the  name  of  the  person  summoned,  and,  under  the  provisions 
of  the  statute,  was  no  sufficient  cause  to  quash  the  venire,  "unless 
the  court,  in  its  discretion,  was  of  opinion  that  the  ends  of  justice 
so  required."   Code  1876,  Sec.  4876;  Jackson  v.  State,  76  Ala. 
26;   Hubbard  v .  State,  72   Ala.    164;   3  Brick.   Dig.   p.   264, 
Sec.  168. 

3.  The  objection,  moreover,  came  too  late;  not  having  been 
interposed  until  the  entire  jury  had  been  drawn,  impanelled,  and 
accepted  by  the  State,  and   was   offered   for  acceptance  to  the 
defendants. 

4.  The  declaration  made  by  the  defendant,  Shade  Scarbrough, 
in  the  presence  and  hearing  of  the  other  co-defendants,  directly 
implicating  them  as  accessories   in   the   alleged  murder  of   the 
deceased,  was  admissible,  in  our  judgment,  against   all   of   the 
defendants.  It  may  be  that  the  jury  should  have  exercised  great 
caution  in  drawing  any  implications  of  guilt  from  the  silence  of 
the  other  defendants,  but  this  went  only  to  the  weight  of  the 
evidence.     The   charge   embodied   in  this  declaration,  that  the 
other  defendants  had  instigated  him  to  commit  the  crime,  was 
one  naturally  calling  for  contradiction  under  the  circumstances 
if  it  was  in  fact  untrue.   Campbell  v.  State,  55  Ala.  80;  Steph. 
Dig.  Ev.  art.  4,  p.  10. 

5.  Conceding,  moreover,  that  this  evidence  was  inadmissible 
against  all  the  defendants,  it    was  certainly  admissible  against 
Scarbrough,  the  one  making  the  declaration,  and  the  remedy  was 
not  a  motion  to  entirely  exclude  it  from  the  jury,  but  the  set- 
tled practice  is  a  request  for  instructions  limiting  its  effect,  so  as 


148  NATURE   AND   ELEMENTS. 

to  confine  the  influence  of  the  evidence  only  to  the  defendant 
against  whom  it  was  admissible.  Lewis  v.  Lee  Co.,  66  Ala.  480; 
1  Brick.  Dig.  p.  810,  Sees.  98,  99. 

6.  The  fourth  charge  requested  by  the  defendant  Scarbrough 
was  clearly  erroneous,  and  was  properly  refused   by   the  court. 
There  is  no  evidence  tending  to  show  that,  at  the  time  of  the 
killing,  he  was  so  drunk  as  to  be  incapable  of  understanding  the 
nature  of  the  act  committed  by  him.    Drunkenness,  moreover, 
would  not  entirely  excuse  the  crime.    It  could  only  operate,  at 
most,  to  reduce  the  grade  of  the  homicide  from  murder  to  man- 
slaughter by  rebutting  the  existence  of  malice  aforethought  in 
the  mind  of  the  perpetrator.   Ford  v.  State,  71  Ala.  385.    The 
other   charges   requested   by   the   defendant   Scarbrough   were 
manifestly  erroneous,  and  their  refusal  was  without  error. 

7.  The  first  charge   requested  by  the  defendant,  John  "Wil- 
liams, was  susceptible  of  the  interpretation  that  the  defendants 
must  have  entered  into  an  express  agreement  to  do  an  unlawful 
act  before  they  would  be  guilty  of  a  conspiracy;- thus  ignoring 
the  fact,  which  the  evidence  tends  to  prove,  that  the  defendant, 
Williams,    and    others   were   near   at   hand,    encouraging   the 
perpetration  of  the  homicide,  either  by  abetting  the  act  of  killing 
or  inciting  the  unlawful  acts  which  immediately  led  to  it.    The 
charge  was  therefore  misleading,  if  not  erroneous,  and  was  prop- 
erly refused. 

8.  If  the  evidence  prima  facie  established  a  combination  or 
conspiracy  to  invade  the  premises  of  deceased,  and  to  beat  or  kill 
him,  the  acts  and  declarations  of  each  of  the  confederates  done  or 
made  in  furtherance  of  the  common  design  were  the  acts  and 
declarations  of  all.   The  eleventh  charge  requested  on  behalf  of 
the  defendant,  John  Williams,  was  repugnant  to  this  principle, 
and  its  refusal  was  without  error. 

9.  The  twelfth  charge  requested  by  the  same  defendant,  and 
the  third  charge  requested  by  the  defendant,  Dennis  Williams, 
were  abstract,  there  being  no  evidence  to  support  either  of  them. 
Each  was  rightly  ref  used  by  the  trial  court. 

We  have  closely  examined  the  record  in  this  case,  and  are  con- 
strained to  say  that  we  find  no  error  in  it.  The  judgment  of  the 
court  is  accordingly  affirmed  as  to  each  of  the  several  defendants; 
and,  the  day  appointed  by  the  Circuit  Court  for  the  execution  of 


REGINA   V.   MICHAEL.     J  149 

the  sentence  of  death  upon  one  of  the  defendants,  Shade  Scar- 
brough,  having  passed,  it  is  accordingly  ordered  and  adjudged  by 
this  court  that  Friday,  the  llth  day  of  March  next,  A.  D.  1887, 
be  fixed  for  the  execution  of  said  sentence,  and  on  that  day  the 
sheriff  of  Barbour  County  will  proceed,  in  all  respects  in  the 
manner  provided  by  statute,  to  execute  the  sentence  of  death 
upon  the  said  Shade  Scarbrough  by  hanging  him  by  the  neck 
until  he  is  dead. 

Turk  v.  State,  2  So.  256;  Butler  v.  People,  125  111.  641;  Doan  v.  State, 
26  Ind.  495;  State  v.  Dowell,  11  S.  E.  525;  Speis  v.  People,  12  N.  B.  865; 
State  v.  Crab,  26  S.  W.  548;  Jennings  v.  Com.,  16  S.  W.  348;  Brown  v. 
Com.,  19  S.  E.  447;  Lamb  v.  People,  96  111.  73;  People  v.  Vasquez,  49  Cal. 
560;  Miller  v.  State,  25  Wis.  384;  State  v.  Shelledy,  8  la.  478;  Miller  v. 
State,  15  Tex.  App.  125;  Stephens  v.  State,  42  Ohio  St.  150;  Regina  v. 
Williams,  7  Cox  C.  C.  357;  Clark,  p.  81;  Bishop  I.,  Sec.  630. 


Principals  and  Accessories. 

Persons  joining  in  the  commission  of  felonies  are  divided 
into  principals  or  accessories,  according  as  they  are  present, 
or  absent  at  the  time  the  act  is  done. 

(1)  Principals  are  either  of  the  first  or  second  degree. 

(a)  Principals  of  the  First  Degree. 

A  principal  of  the  first  degree  commits  the  act  himself,  or 
through  the  medium  of  an  innocent  third  person. 

REGINA  v.  MICHAEL. 

Crown  Case,  1840. 
2  Moody  C.  C.  120. 

THE  prisoner,  Catherine  Michael,  was  tried  before  Mr.  Baron 
Alderson  at  the  Central  Criminal  Court  in  April,  1840  (Mr. 
Justice  Littledale  being  present),  for  the  willful  murder  of 
George  Michael,  an  infant  of  the  age  of  nine  months,  by  ad- 
ministering poison. 

The  indictment  alleged  that  the   prisoner  contriving  and  in- 


150  NATURE   AND   ELEMENTS. 

tending  to  kill  and  murder  George  Michael  on  the  31st  of 
March,  in  the  third  year  of  the  reign  of  her  present  Majesty, 
upon  the  said  George  Michael  feloniously,  &c.  did  make  an  as- 
sault ;  and  that  the  prisoner  a  large  quantity,  to  wit  half  an  ounce 
weight  of  a  certain  deadly  poison  called  laudanum,  feloniously, 
<fec.  did  give  and  administer  unto  said  George  Michael,  with  in- 
tent that  he  should  take  and  swallow  the  same  down  into  his 
body  (she  then  and  there  well  knowing  the  said  laudanum  to 
be  deadly  poison),  and  the  said  laudanum  so  given  and  ad- 
ministered unto  him  by  the  said  Catherine  Michael  as  afore- 
said, the  said  George  Michael  did  take  and  swallow  down  into 
his  body,  by  reason  and  by  means  of  which  said  taking  and  swal- 
lowing down  the  said  laudanum  into  his  body  as  aforesaid,  the 
said  George  Michael  became  and  was  mortally  sick  and  distem- 
pered in  his  body,  of  which  said  mortal  sickness  and  distemper  the 
said  George  Michael  from  <fec.  till  &c.  did  languish  &c.  and  died ; 
and  concluding  in  the  usual  form  as  in  cases  of  murder. 

It  appeared  in  evidence  that  the  prisoner  on  the  27th  day  of 
March  last,  delivered  to  one  Sarah  Stephens,  with  whom  the 
child  was  at  nurse,  a  quantity  of  laudanum  about  an  ounce,  telling 
the  said  Sarah  Stepehens  that  it  was  proper  medicine  for  the  child 
to  take,  and  directing  her  to  administer  to  the  child  every  night  a 
teaspoonful  thereof.  That  such  a  quantity  as  a  teaspoonful  was 
quite  sufficient  to  kill  a  child;  and  that  the  prisoner's  intention, 
as  shown  by  the  finding  of  the  jury  in  so  delivering  the  lauda- 
num and  giving  such  directions  as  aforesaid,  was  to  kill  the 
child. 

That  Sarah  Stephens  took  home  with  her  the  laudanum,  and 
thinking  the  child  did  not  require  medicine  had  no  intention  of 
administering  it.  She,  however,  not  intending  to  give  it  at  all, 
left  it  on  the  mantelpiece  of  her  room,  which  was  in  a  different 
house  from  where  the  prisoner  resided,  she,  the  prisoner,  then 
being  a  wet  nurse  to  a  lady;  and  some  days  afterwards,  that  is, 
on  the  31st  of  March,  a  little  boy  of  the  said  Sarah  Stephens, 
of  the  age  of  five  years,  during  the  accidental  absence  of  Sarah 
Stephens,  who  had  gone  from  home  for  some  hours,  removed  the 
laudanum  from  its  place  and  administered  to  the  prisoner's  child 
a  much  larger  dose  of  it  than  a  teaspoonful,  and  the  child  died  in 
consequence. 


COLLINS  V.  THE   STATE.  151 

The  jury  were  directed  that  if  the  prisoner  delivered  to  Sarah 
Stephens  the  laudanum,  with  intent  that  she  should  administer 
it  to  the  child  and  thereby  produce  its  death,  the  quantity  so 
directed  to  be  administered  being  sufficient  to  cause  death;  and 
that  if  the  (prisoner's  original  intention  still  continuing)  the 
laudanum  was  afterwards  administered  by  an  unconscious  agent, 
the  death  of  the  child  under  such  circumstances  was  murder  on 
the  part  of  the  prisoner. 

They  were  directed  that  if  the  teaspoonful  of  laudanum  was 
sufficient  to  produce  death,  the  administration  by  the  little  boy 
of  a  much  larger  quantity  would  make  no  difference. 

The  jury  found  the  prisoner  guilty.  The  judgment  was  re- 
spited, that  the  opinion  of  the  judges  might  be  taken,  whether 
the  facts  above  stated  constituted  an  administering  of  the  poison 
by  the  prisoner  to  the  deceased  child. 

This  case  was  considered  by  ail  the  judges  (except  Gurney  B. 
and  Maule  J.)  in  Easter  term  1840,  and  they  were  unanimously 
of  opinion  that  the  conviction  was  right. 

Watson  v.  State,  1  S.  W.  451;  Collins  v.  State,  3  Helsk  14;  Gregory  v. 
State,  26  Ohio  St.  510;  Adams  v.  People,  1  N.  Y.  173;  Com.  v.  Hill,  11 
Mass.  136;  Rountree  v.  State,  10  Tex.  App.  110;  Cook  v.  State,  14  Tex. 
App.  96;  Pinkard  v.  State,  30  Ga.  757;  Berry  v.  State,  4  Tex.  App.  492; 
Sharp  v.  State,  6  Tex.  App.  650;  Boze  Smith  v.  State,  37  Ark.  274;  Clark, 
p.  83;  Bishop  I.,  Sec.  648;  Wharton,  206;  Hawley  &  McGregor,  p.  80. 


(b)  Principals  of  the  Second  Degree. 

Principals  of  the  second  degree  are  those  actually  or  con- 
structively present  aiding  or  abetting  the  act. 

COLLINS  v.  THE  STATE. 

Supreme  Court  of  Georgia,  1892. 
88  Ga.  347;  14  S.  E.  474. 

SIMMONS,  Justice. 

Stephen  Custer  and  Rufus  Collins  were  indicted  for  murder. 
There  were  two  counts  in  the  indictment.  The  first  count  charged 


152  NATURE   AND   ELEMENTS. 

them  both  as  principals;  the  second  charged  Ouster  as  principal 
and  Collins  as  accessory  before  the  fact.  They  severed  on  the 
trial,  and  Collins  was  tried  first  and  convicted  on  the  first  count. 
He  made  a  motion  for  a  new  trial,  which  was  overruled. 

1.  One  of  the  grounds  of  the  motion  relied  upon  for  reversal 
of  the  judgment  of  the  court  below  in  refusing  to  grant  a  new 
trial,  was,  "that  the  evidence  in  said  case  was  not  sufficient  to  au- 
thorize his  conviction  on  the  first  count  in  said  indictment,  and 
was  insufficient  to  support  the  same."  It  was  argued  by  learned 
counsel  for  the  plaintiff  in  error  that  the  evidence  showed  that 
Collins  was  either  a  principal  in  the  second  degree  or  an  acces- 
sory before  the  fact,  and  he  could  not,  therefore,  be  convicted 
upon  the  first  count  in  the  indictment,  which  charged  him  with 
being  a  principal  perpetrator  of  the  crime.  Our  Code  (Sec. 
4305),  in  defining  principals  in  the  first  and  second  degree,  says: 
"A  person  may  be  principal  in  an  offence  in  two  degrees.  A 
principal  in  the  first  degree  is  he  or  she  that  is  the  actor  or  abso- 
lute perpetrator  of  the  crime.  A  principal  in  the  second  degree 
is  he  or  she  who  is  present  aiding  and  abetting  the  act  to  be  done ; 
which  presence  need  not  always  be  an  actual,  immediate  standing 
by,  within  sight  or  hearing  of  the  act;  but  there  may  be  also  a 
constructive  presence,  as  when  one  commits  a  robbery,  or  mur- 
der, or  other  crime,  and  another  keeps  watch  or  guard  at  some 
convenient  distance."  The  evidence  on  this  point,  in  brief,  is, 
that  Collins,  a  white  man,  brought  Ouster,  a  negro  boy  about 
fifteen  years  old,  from  North  Carolina  to  this  State  as  a  servant, 
and  that  while  on  their  journey  to  this  State,  Collins  told  Ouster 
that  he  wanted  him  to  kill  his  (Collins')  wife ;  and  after  reaching 
Gordon  County  in  this  State,  he  mentioned  the  subject  to  him 
upon  several  occasions,  promising  to  pay  him  $50  if  he  would 
kill  her,  and  Ouster  finally  consented;  that  upon  the  day  of  the 
homicide,  Mrs.  Collins  called  Custer  to  assist  her  in  moving  a 
mattress;  that  Custer  was  at  that  time  at  a  distillery  about  fifty 
yards  from  the  dwelling-house  where  Mrs.  Collins  was,  and  as  he 
started  to  the  dwelling-house,  he  passed  Collins,  who  told  him 
that  the  pistol  was  loaded,  to  snap  it  once,  and  the  second  time  it 
snapped  it  would  fire;  that  Custer  went  to  the  house,  got  the 
pistol  from  under  the  head  of  the  bed,  snapped  it  once  in  the 
front  room,  saw  Mrs.  Collins  and  snapped  it  at  her,  and  it  fired 


COLLINS  V.  THE  STATE.  153 

then  as  Collins  said  it  would.  Collins  did  not  go  to  the  house  with 
Custer,  but  remained  at  the  distillery  or  grocery,  about  fifty 
yards  from  the  house. 

This  evidence,  if  it  be  true,  makes  Collins  at  least  a  principal 
in  the  second  degree,  if  not  an  "actor,  or  absolute  perpetrator  of 
the  crime."  He  was  not  actually  present  in  the  house  where  the 
crime  was  perpetrated,  but  he  was  constructively  present — suf- 
ficiently near  to  encourage  by  his  presence  the  principal  actor, 
and  to  assist  him  if  assistance  should  become  necessary.  Con- 
federacy with  the  absolute  perpetrator  of  the  crime,  supple- 
mented by  constructive  presence,  makes  one  a  principal  in  the 
second  degree.  1  Whart.  Crim.  Law,  Sees.  213,  218,  219;  Kerr, 
Homicide,  110;  1  Bish.  Crim.  Law,  Sec.  653;  2  Roscoe,  Crim. 
Ev.  p.  *752;  Desty,  Amer.  Crim.  Law,  Sec.  37a. 

(a)  Having  shown  that  Collins  was  a  principal,  it  is  immaterial 
whether  he  was  a  principal  in  the  first  or  second  degree.  There  is 
no  difference  in  this  State  between  the  punishment  of  a  principal 
in  the  first  degree  and  that  of  a  principal  in  the  second  degree; 
and  where  this  is  true,  it  seems  now  to  be  well  settled  that  there 
is  no  practical  or  material  difference  between  principals  of  the 
two  degrees,  and  a  principal  in  the  second  degree  may  be  con- 
victed on  an  indictment  charging  him  as  principal  in  the  first 
degree;  in  other  words,  an  indictment  charging  one  as  principal 
in  the  first  degree  is  supported  by  evidence  showing  him  to  be  a 
principal  in  the  second  degree.  This  is  especially  true  if  the 
facts,  as  in  this  case,  be  such  as  that  the  act  by  which  the  crime 
is  perpetrated  would,  on  established  principles  of  law,  be  im- 
puted to  him  as  committed  by  himself  through  the  agency  of 
another.  1  Bish.  Crim.  Law,  Sec.  648;  2  Bish.  Crim.  Proc.  Sec. 
3;  Desty,  Amer.  Crim.  Law,  Sec.  36a;  2  Roscoe,  Crim.  Ev.  p. 
*752-3;  Hill  v.  State,  28  Ga.  604;  Leonard  v.  State,  77  Ga.  764; . 
Ferguson  v.  State,  32  Ga.  658;  McGinnis  v.  State,  31  Ga.  263; 
Plain  v.  State,  60  Ga.  284;  Dumas  v.  State,  62  Ga.  58.  The  prin- 
ciple of  the  last  four  cases  cited  is  that  where  persons  conspire 
together  to  commit  crime,  and  are  present  countenancing  or  aid- 
ing it,  the  act  of  each  is  the  act  of  all.  The  cases  of  Washington 
v.  State,  36  Ga.  222,  and  Shaw  v.  State,  40  Ga.  120,  were  relied 
upon  by  counsel  for  the  plaintiff  in  error  to  establish  his  proposi- 
tion that  a  principal  in  the  second  degree  could  not  be  convicted  aa 


154  MATURE   AND   ELEMENTS. 

a  principal  in  the  first  degree;  but  they  do  not  establish  his  con- 
tention. They  do  not  rule  that  a  principal  in  the  second  degree 
cannot  be  convicted  as  a  principal,  but  do  rule  that  where  a  per- 
son is  indicted  as  the  actor  or  absolute  perpetrator  of  the  crime, 
he  cannot  be  convicted  as  a  principal  in  the  second  degree.  In 
these  cases  the  accused  were  indicted  as  principal  in  the  first 
degree,  and  the  jury  found  them  guilty  in  the  second  degree,  and 
the  court  held  that  this  could  not  be  done. 

2.  Another  ground  of  the  motion  complains  that  the  court 
erred  in  admitting  certain  testimony  of  Miller  over  the  objection 
of  the  defendant.   Miller  testified  that  he  heard  Ouster  say  that 
Collins  hired  him  to  kill  his  wife.  This  witness  had  testified  as  to 
what  Ouster  told  him  when  he  arrested  him,  about  the  killing  of 
Mrs.  Collins,  and  that  Ouster  said  it  was  an  accident,  &c.   Upon 
his  cross-examination  he  was  asked  if  he  did  not  hear  Ouster  say 
that  Collins  hired  him  to  kill  his  wife,  and  he  replied  that  he  did 
in  a  subsequent  conversation  hear  Ouster  make  that  statement. 
The  record  shows  that  this  was  not  a  part  of  the  conversation 
which  Miller  had  testified  to  in  the  direct  examination,  when  he 
arrested  Ouster,  but  that  it  was  a  statement  he  heard  Ouster  make 
upon  a  different  occasion.   If  it  had  been  part  of  the  same  con- 
versation to  which  Miller  testified  in  his  direct  examination,  then 
of  course  the  State  would  be  entitled  to  bring  out  the  whole  con- 
versation; but  as  this  statement  was  in  another  conversation  and 
upon  a  different  occasion,  it  was  clearly  hearsay,  and  the  court 
erred  in  not  excluding  it  when  it  was  objected  to  by  the  defend- 
ant on  that  ground. 

3.  The  error  above  referred  to  is  sufficient  to  authorize  this 
court  to  grant  a  new  trial;  and  we  do  so  the  more  readily,  be- 
cause on  reading  the  evidence  in  the  record  we  are  inclined  to 
think  that  the  whole  story  of  Ouster  may  have  been  a  fabrica- 
tion made  by  him  under  the  influence  of  threats  and  coercion. 
Johnson,  one  of  the  witnesses  and  the  magistrate  who  held  the  in- 
quest, testified  that  he  saw  Ouster  upon  the  night  he  was  caught, 
and  he  claimed  then  that  the  killing  was  an  accident.    This  wit- 
ness said:  "I  was  at  Plainville  when  they  were  pulling  him.  They 
told  him  to  tell  how  much  Collins  was  to  give  to  him,  or  they 
would  shoot  him.    He  was  badly  scared,  and  he  cried  after  they 
put  him  down.  I  did  all  that  I  could  to  save  his  life  and  get  them 


COLLINS   V.   THE   STATE.  155 

to  put  him  down.  I  was  surprised  when  he  said  he  was  hired  to 
do  it,  and  I  never  heard  of  his  changing  until  he  was  frightened. 
He  stated,  after  the  crowd  got  hold  of  him,  that  he  was  hired  to 
kill  the  woman.  He  said  Collins  was  to  give  him  $50."  Ouster 
himself  testifies  that  he  "was  very  badly  scared  when  the  crowd 
had  him."  We  think,  in  view  of  these  facts,  that  the  testimony 
of  Ouster,  though  self-criminating,  may  be  a  fabrication.  The 
record  shows  that  he  was  an  ignorant  colored  boy  about  fifteen 
years  old,  and  that  he  first  said  the  shot  was  fired  accidentally. 
He  ran  off,  and  after  a  day  or  two  was  apprehended  by  the 
witness,  Miller,  who  took  him  to  a  neighbor's  house,  where,  after 
being  cautioned  to  tell  the  truth,  he  made  the  same  statement, 
and  gave  all  the  details  of  the  shooting  which  went  to  show  that 
it  was  an  accident.  The  record  does  not  show  that  he  ever  made 
any  other  statement  than  that  it  was  an  accident,  until  the  crowd 
took  him  the  next  morning  and  "pulled"  him,  and  threatened  to 
shoot  him  if  he  did  not  tell  how  much  Collins  agreed  to  pay  him 
for  killing  his  wife.  He  then  for  the  first  time  said  that  Collins 
had  hired  him  to  kill  her  for  $50.  It  is  true  he  adhered  to  this 
story  on  the  trial  and  while  under  the  protection  of  the  court, 
but  if  it  was  a  fabrication  in  the  first  instance,  induced  by  threats 
and  coercion,  it  is  possible  that  in  adhering  to  it  he  may  still  have 
been  influenced  in  some  degree  by  the  same  motives.  However 
that  may  be,  we  think  from  the  general  countenance  of  the  case 
that  the  defendant  is  entitled  to  a  new  trial. 

Judgment  reversed. 

Com.  v.  Knapp,  9  Pick.  494;  McCarty  v.  State,  26  Miss.  299;  Breese 
«.  State,  12  Ohio  St.  146;  State  v.  Hamilton,  13  Nev.  386;  State  v.  Jones, 
83  N.  C.  605;  State  v.  Valwell,  66  Vt.  558;  Howard  v.  Com.,  27  S.  W. 
854;  People  v.  Repke,  61  N.  W.  861;  State  v.  Paxton,  29  S.  W.  705;  Wil- 
liamson v.  State,  29  S.  W.  470;  State  v.  Jones,  82  N.  C.  681;  Doan  v. 
State,  26  Ind.  495;  Clark,  p.  84;  Bishop  I.,  Sec.  648;  Wharton,  Sec.  211; 
Hawley  &  McGregor,  p.  81. 

NOTE.— This  distinction  was  only  made  in  felony.  In  treason  and  mis- 
demeanor it  was  unknown;  in  the  former  because  of  the  enormousness 
of  the  offence  all  were  principals,  and  in  the  latter  because  of  the  minor 
character  of  the  offence,  the  law  did  not  consider  the  shades  of  guilt. 

Winnard  v.  State,  30  S.W.,  555;  Stevens  v.  People,  67  111.  587;  Stratton 
v.  State,  45  Ind.  468;  Lpwenstein  v.  People,  54  Barb.  299;  Van  Meter  v. 
People,  60  111.  168;  Faircloth  v.  Georgia,  73  Ga.  426;  Com.  v.  McAtee,  8 


156  NATURE   AND   ELEMENTS. 

Dana  28;  Clark,  p.  84;  Bishop  I.,  Sec.  648;  Wharton,  211;  Hawley  &  Mc- 
Gregor, p.  80. 

NOTE.— Some  States  make  all  principals,  principals  of  the  first  degree. 

Minn.  Stat.1894,  Sec.  6310;  N.Y.  Penal  Code,  Sec.  29;  State  v.  Beebe,17 
Minn.  241;  State  v.  Pugsley,  38  N.  W.  498;  Territory  v.  Guthrie,  17  Pac. 
30;  Blain  v.  State,  7  S.  W.  Rep.  239;  Weston  v.  Com.,  2  Atl.  191. 

NOTE.— The  distinction  is  no  longer  of  any  practical  Importance;  one 
needs  to  know  of  the  distinction  simply  in  order  to  interpret  the  lan- 
guage of  the  codes. 

Bishop  Cr.  Law,  Sec.  648;  Hawley  &  McGregor,  p.  80. 


(2)  Accessories. 

Accessories  are  those  who,  without  being  present,  either 
actually  or  constructively,  aid  or  assist  in  the  crime,  either 
before  or  after  its  commission. 

(a)  Accessories  Before  the  Fact. 

Accessories  before  the  fact  are  those  who  without  being 
actually  or  constructively  present,  procure,  counsel,  aid  or 
command  another  to  commit  the  crime. 

•4* 

PEOPLE  v.  KATZ. 

Supreme  Court  of  New  York,  1862. 
23  How.  Pr.  93. 

WKIT  of  error  to  the  court  of  Oyer  and  Terminer.  On  the  llth 
of  December,  1860,  Simon  Katz  was  indicted  in  the  New  York 
Oyer  and  Terminer  for  arson  in  the  first  degree,  in  setting  fire  to  the 
dwelling  house  (the  lower  part  heing  used  as  a  grocery),  corner 
of  Attorney  and  Division  streets  in  that  city.  The  case  was  tried 
in  January,  1861,  in  the  Oyer  and  Terminer,  Judge  Leonard  pre- 
siding. On  the  trial  Louis  Katz,  a  nephew  of  the  prisoner,  a  boy 
about  seventeen  years  of  age,  was  the  principal  witness  for  the 
people. 

It  was  claimed  by  the  district  attorney  that  the  motive  of  the 
prisoner  was  to  obtain  of  the  insurance  company  the  amount  for 
which  he  was  insured.  The  boy  Louis,  who  'swore  that  he  set  fire 


PEOPLE   V.    KATZ.  157 

to  the  building  in  the  night-time,  at  the  instigation  of  the  de- 
fendant, testified  that  he  was  always  on  the  best  of  terms  with 
his  uncle,  and  never  entertained  toward  him  any  ill-will.  On  the 
part  of  the  defence  quite  a  number  of  witnesses  were  called,  who 
testified  that  Louis  had  previously  exhibited  toward  the  prisoner 
the  utmost  ill-will,  and  had  often  threatened  revenge.  The  trial 
resulted  in  a  verdict  of  guilty. 

The  prisoner's  counsel,  in  the  course  of  the  trial  took  excep- 
tions to  the  decisions  of  the  court  in  the  admission  of  evidence, 
and  to  the  charge  of  the  court  to  the  jury.  The  only  point  argued 
was  as  to  the  error  of  the  judge  upon  the  trial,  in  charging  the 
jury  that  they  might  convict  the  prisoner  upon  an  indictment 
charging  him  as  a  principal,  although  he  was  absent  at  the  time 
the  premises  were  set  on  fire. 

By  the  court,  Sutherland,  Justice.  In  indicting,  trying  and 
punishing  persons  who  commanded  or  procured  a  murder  or 
felony  to  be  committed  by  another,  and  were  absent  when  the 
crime  was  committed,  the  common  law  did  not  recognize  or  adopt 
the  principle  or  relation  of  principal  and  agent,  but  that  of  prin- 
cipal and  accessory,  when  the  person  or  agent  who  actually  com- 
mitted the  crime  was  criminally  responsible  for  the  crime.  (1 
Hale,  233,  615;  Barb.  Or.  L.,  2d  ed.,  281-2;  Wheaton's  Or.  L., 
4th  ed.,  112,  Sec.  134.)  This  common  law  principle,  and  the 
distinction  between  principals  and  accessories  before  and  after 
the  fact,  is  recognized  by  the  Revised  Statutes.  (2  R.  S.,  698, 
•Sec.  67,  1st  ed.;  id.,  727,  Sees.  48,  49;  id.,  665,  Sec.  31;  see  also 
People  v.  Bush,  4  Hill,  133;  People  v.  Adams,  3  Denio,  190;  S. 
C.  1  Comst.  173.)  In  misdemeanors,  the  act  or  crime  may  be 
charged  as  the  act  or  crime  of  the  party  procuring  or  command- 
ing it  to  be  done  without  reference  to  the  agency. 

An  accessory  before  the  fact  is  one  who  procures  or  commands 
the  felony  to  be  committed,  though  not  present  at  the  time  of  its 
commission.  (1  Hale,  615.)  Although  an  accessory  before  the 
fact,  upon  conviction,  is  liable  to  be  punished  in  the  same  manner 
as  the  principal  in  the  first  degree  (2  R.  S.,  698,  Sec.  6),  yet  the 
distinction  between  principals  and  accessories  is  not  one  of  form 
merely,  but  is  material  and  founded  on  principle,  and  relates  to 
the  regularity  of  criminal  proceedings,  and  therefore  one  in- 


158  NATURE   AND   ELEMENTS. 

dieted  as  principal  cannot  be  convicted  on  testimony  showing 
him  to  have  been  only  accessory  before  the  fact.  (1  Bish.  Cr.  L., 
542;  1  Arch.  Cr.  Pr.  &  PL,  2d  ed.,  73;  Wharton's  Cr.  L.,  Sec. 
114;  Baron  v.  People,  1  Parker  Cr.  R.,  250;  Norton  v.  People, 
8  Cowen,  137.) 

The  plaintiff  in  error  in  the  present  case  was  indicted  as  a  prin- 
cipal for  arson  in  the  first  degree.  The  indictment  charged  that 
he,  on  the  29th  day  of  October,  1860,  in  the  night-time,  set  fire 
to  an  inhabited  dwelling-house  in  the  city  of  New  York.  Louis 
Katz,  a  boy  then  in  his  seventeenth  year,  and  a  nephew  of  .the  pri- 
soner, testified  that  between  ten  and  eleven  o'clock  on  the 
night  of  the  29th  of  October,  he,  in  pursuance  of  instructions  of 
the  prisoner,  and  in  his  absence,  set  fire  to  the  building  in  ques- 
tion, the  lower  part  of  which  was  occupied  by  the  prisoner  as  a 
grocery  store — the  upper  part  was  used  as  a  dwelling.  All  the 
testimony  showed  that  the  prisoner  was  absent  when  the  premises 
were  fired.  It  was  proved,  on  the  part  of  the  people,  that  the 
prisoner  left  his  store  at  eight  o'clock  that  evening,  and  did  not 
return  there  again  that  night.  There  was  no  evidence  that  the 
boy  Katz,  who  actually  fired  the  building,  was  insane  or  other- 
wise criminally  irresponsible  for  the  crime.  The  judge  sub- 
stantially charged  that,  although  the  prisoner  was  absent  at  the 
time  of  the  fire,  yet  if  he  instigated  Katz  to  commit  the  crime  in 
his  (the  prisoner's)  absence,  he  (the  prisoner)  might  be  convicted 
under  the  indictment  Indeed,  the  whole  charge  was  upon  the 
theory  that  the  prisoner  might  be  convicted  as  principal,  though 
absent,  if  he  procured  or  directed  the  boy  Katz  to  commit  the 
crime.  To  this  charge  the  prisoner's  counsel  excepted.  The  coun- 
sel for  the  prisoner  also  requested  the  court  to  charge  that  under 
the  indictment  the  prisoner  could  not  be  convicted  unless  the 
evidence  showed  that  he  personally  fired  the  building,  or  was 
present  aiding  or  abetting.  The  judge  refused  so  to  charge,  and 
the  prisoner's  counsel  excepted. 

It  is  plain  on  the  testimony  in  this  case,  that  the  boy  Katz  was 
criminally  responsible,  and  might  have  been  indicted,  tried  and 
convicted  as  principal.  He  was  sixteen  years  old,  and  from  aught 
that  appears  from  the  testimony,  of  ordinary  intelligence.  He 
had  but  recently  arrived  in  this  country,  and  no  doubt,  under  the 
circumstances,  was  very  likely  to  be  influenced  by  his  uncle,  the 


STATE  V.   PAYNE.  159 

prisoner;  but  he  would  not  be  permitted  to  plead  ignorance  of 
the  law,  or  his  uncle's  influence  or  authority,  in  bar  of  an  indict- 
ment. Although  he  may  have  been  ignorant  of  the  extent  of  the 
punishment  for  the  crime,  yet  it  appears  from  his  own  testimony 
that  he  knew  he  was  doing  wrong;  that  the  act  would  endanger 
the  lives  of  others,  and  that  he  hesitated  about  its  commission. 

It  follows  that  the  prisoner  was  an  accessory  before  the  fact 
merely,  and  could  not  be  convicted  under  the  indictment  against 
him  as  principal,  and  that  the  judgment  of  the  Oyer  and  Ter- 
miner  should  be  reversed. 

State  v.  Ayers,  8  Baxter  96;  Norton  v.  People,  8  Cow.  137;  Wool- 
weaver  v.  State,  50  Ohio  St.  277;  Com.  v.  Hollister,  157  Pa.  St.  13;  Sloan 
v.  Com.,  23  S.  W.  676;  Smith  v.  State,  37  Ark.  274;  People  v.  Hodges,  27 
Cal.  340;  State  v.  Orrick,  17  S.  W.  176;  State  v.  Payne,  1  Swan  383;  Wil- 
liams v.  State,  47  Ind.  568;  Baker  v.  State,  12  Ohio  St.  214;  Clark,  p.  81; 
Bishop  I.,  Sec.  662-672;  Wharton,  225;  Hawley  &  McGregor,  p.  82;  The 
Penal  Code  of  Pa.;  Shields,  vol.  I.,  233,  404,  417,  419,  427,  453,  517,  562; 
vol.  II.,  622,  669,  670. 


(b)  Accessories  After  the  Fact. 

An  accessory  after  the  fact  is  one  who  knowing  that  a 
felony  has  been  committed,  aids  the  escape,  or  hinders  the 
conviction  of  the  felon. 


STATE  v.  PAYNE. 

Supreme  Court  of  Tennessee,  1852. 
1  Swan,  383. 

GREEN,  J.,  delivered  the.  opinion  of  the  court. 

The  indictment  in  this  case  charges,  that  David,  a  negro  slave, 
the  property  of  Daniel  McCarn,  made  an  assault  upon  Elizabeth 
McCarn,  a  free  white  woman,  with  intent  to  kill  and  murder  her; 
and  that  Daniel  McCarn  moved,  incited  and  commanded  the  said 
negro  man,  David,  before  the  making  the  said  assault,  to  commit 
the  same,  and  that  the  prisoner,  George  Payne,  knowing  that  said 


160  NATURE   AND   ELEMENTS. 

Daniel  McCarn  had  moved  and  incited  the  said  negro,  David,  to 
commit  the  said  assault,  did  harbor  and  conceal,  aid  and  comfort 
the  said  Daniel  McCarn. 

On  motion  of  the  defendant,  the  Circuit  Court  quashed  this 
indictment,  and  the  attorney  general  appealed  to  this  court. 

There  is  no  objection  to  this  indictment,  as  to  matter  of  form; 
but  it  is  insisted,  that  by  our  law,  a  party  is  not  indictable  as  an 
accessary  of  an  accessary  to  a  felony. 

It  is  not  denied,  that  at  the  common  law,  there  might  be  an 
accessary  to  an  accessary  before  the  fact,  but  it  is  said,  our 
statutes  provide  no  punishment  for  the  offence. 

Chitty,  in  his  Criminal  Law,  says  (vol.  1,  p.  225),  "There  may 
be  an  accessary  to  a  person,  who  was  accessary  before  the  fact,  as 
if  A.  advise  and  procure  B.  to  murder  C.,  by  this  A.  is  acces- 
sary before  the  fact,  and  though  but  accessary,  yet  if  D.  receives 
and  conceals  him  from  justice,  D.  thereby  becomes  an  accessary, 
but  there  cannot  be  an  accessary  to  a  person  who  was  accessary 
after  the  fact."  See  also,  3  P.  Williams,  475. 

Indeed,  it  would  be  most  unreasonable,  to  hold  that  there 
could  be  no  accessary  after  the  fact,  to  a  person  who  was  an  ac- 
cessary before  the  fact,  for  it  often  happens  that  the  accessary  be- 
fore the  fact  is  much  more  guilty  than  the  principal  felon.  Of 
this  remark,  the  present  case  is  an  illustration.  If  McCarn  com- 
manded his  slave  to  commit  the  assault  charged,  he  is  the  most 
guilty  felon  of  the  two;  and  surely  he  who  aids  his  escape,  and 
conceals  him  from  justice,  is  as  guilty  as  he  would  be  if  McCarn 
had  made  the  assault  in  person. 

There  is,  therefore,  no  ground  for  quashing  the  indictment, 
even  if  there  be  doubt  as  to  whether  the  case  falls  within  the 
64th  section  of  the  Penitentiary  Code.  But,  if  there  be  an  ac- 
cessary after  the  fact,  to  one  who  was  an  accessary  before  the 
fact,  such  accessary  before  the  fact,  is  ^principal  to  the  party  who 
thus  conceals  and  secrets  him.  The  64th  section  of  the  act  of 
1829,  chap.  23,  says,  "All  accessaries  after  the  fact  shall  be 
punished  as  their  principal,  except,  etc."  The  act  does  not  say 
that  they  shall  be  punished  as  the  principal  felon  in  the  transac- 
tion, bnt  that  they  shall  be  punished  as  "their  principal" — which 
means,  the  person  to  whom  they  have  given  aid  and  comfort. 

Reverse  the  judgment,  and  remand  the  prisoner  for  trial. 


PEOPLE  V.   GARDNER.  161 

People  v.  Gassaway,  28  Cal.  405;  Tarpe  v.  State,  20  S.  E.  217;  State  v. 
Empey,  79  la.  460;  Harrell  v.  State,  39  Miss.  702;  Wren  v.  Com.,  26  Grat 
Va.  952;  Com.  t;.  Filburn,  119  Mass.  297;  Tully  v.  Com.,  11  Bush  (Ky.) 
154;  White  v.  People,  81  111.  333;  Clark,  p.  95;  Bishop  I.,  Sec.  692;  Whar- 
ton,  241;  Hawley  &  McGregor,  p.  86. 

NOTE.— A  wife  is  not  liable  as  an  accessory  after  the  fact  when  her 
husband  is  principal.  No  other  relation  affords  a  protection. 

State  v.  Kelly,  74  la.  589;  Clark,  p.  97;  May,  Sec.  34;  Wharton,  Sec. 
243;  Hawley  &  McGregor,  p.  90. 

NOTE. — An  accessory  cannot  be  convicted  of  a  higher  offence  than 
the  principal  and  the  acquittal  of  the  principal  prevents  the  conviction 
of  the  accessory. 

McCarty  v.  State,  44  Ind.-214;  Buck  v.  Com.,  107  Pa.  St.  486;  Com.  v. 
Phillips,  16  Mass.  423;  State  v.  McDaniel,  41  Tex.  229;  May,  Sec.  31; 
Wharton,  Sec.  244. 

Contra—  State  v.  Whitt,  18  S.  E.  715;  State  v.  Bogue,  34  Pac.  410; 
Minn.  Stat.  1894,  Sec.  6313. 

NOTE.— Statutes  in  many  States  make  all  principals,  principals  of  the 
first  degrees;  leaving  of  joint  criminals  only  principals  of  the  first  de- 
gree and  accessories  after  the  fact. 

Minn.  Stat.  1894,  Sec.  6310,  6311;  N.  Y.  Penal  Code,  Sec.  30;  State  v. 
Fredericks,  85  Mo.  145. 

NOTE. — Statutes  in  some  States  make  it  possible  to  convict  the  acces- 
sory though  the  principal  has  not  been  arrested,  tried  or  convicted. 

Buck  v.  Com.,  107  Pa.  St.  486;  State  v,  Bogue,  52  Kan.  79;  State  v.  Pat- 
terson, 52  Kan.  335;  State  v.  Whitt,  18  S.  E.  715;  Minn.  Stat.  1894,  Sec. 
6311-6313;  N.  Y.  Penal  Code,  Sec.  32. 


C. 
Attempts. 

"  An  attempt  is  an  act  done  in  part  execution  of  a  design 
to  commit  a  crime." 

PEOPLE  v.  GARDNER. 

Court  of  Appeals  of  New  York,  1894. 
144  N.  Y.  119;  38  N.  E.  1003. 

EARL,  J.   The  defendant  was  indicted  and  upon  his  trial  con- 
victed of  an  attempt  to  commit  the  crime  of  extortion  in  the  city 
of  New  York  on  the  4th  day  of  December,  1892,  by  attempting 
11 


162  NATURE  AND   ELEMENTS. 

to  obtain  $150  from  Catharine  Amos  by  threatening  to  accuse 
her  of  keeping  a  house  of  prostitution.  The  following  are  the 
sections  of  the  Penal  Code  under  which  he  was  convicted:  Sec- 
tion 552,  "Extortion  is  the  obtaining  of  property  from  another, 
with  his  consent,  induced  by  a  wrongful  use  of  force  or  fear,  or 
under  color  of  official  right;"  Sec.  553,  'Tear,  such  as  will  con- 
stitute extortion,  may  be  induced  by  a  threat"  (among  other 
things)  "to  accuse  a  person  of  any  crime;"  Sec.  34,  "An  act  done 
with  intent  to  commit  a  crime,  and  tending,  but  failing,  to  effect 
its  commission,  is  an  attempt  to  commit  that  crime;"  Sec.  685, 
"A  person  may  be  convicted  of  an  attempt  to  commit  a  crime, 
although  it  appears  on  the  trial  that  the  crime  was  consummated, 
unless  the  court,  in  its  discretion,  discharges  the  jury  and  directs 
the  defendant  to  be  tried  for  the  crime  itself." 

Catharine  Amos,  who  was  the  principal  witness  for  the  Peo- 
ple, testified  that  for  nine  years  she  had  been  the  keeper  of  a 
house  of  prostitution  in  the  city  of  New  York,  and  that  the  de- 
fendant, in  December,  1892,  came  to  her  and  agreed  with  her 
that  if  she  would  pay  certain  sums  of  money  to  him,  and  espe- 
cially the  sum  of  $150,  he  would  not  accuse  her  of  the  crime, 
and  that  from  October  19th,  1892,  to  December  4th,  1892,  she 
had  been  acting  as  a  decoy  of  the  police  and  trying  to  induce  the 
defendant  to  receive  money  from  her  under  such  circumstances 
as  would  render  him  guilty  of  a  crime  and  enable  the  police  to 
arrest  and  convict  him  of  it. 

The  evidence  tended  to  show  the  existence  of  every  ele- 
ment constituting  the  crime  of  extortion  except  that  Mrs.  Amos 
in  paying  the  money  exacted  by  the  defendant  was  not  actuated 
by  fear. 

It  is  urged  on  behalf  of  the  defendant  that  the  fact  that  his 
threats  did  not  inspire  fear  inducing  any  action  on  the  part  of 
Mrs.  Amos,  an  element  essential  to  constitute  the  completed 
crime  of  extortion,  renders  it  impossible  to  sustain  an  indictment 
and  conviction  for  the  lesser  crime  of  an  attempt  at  extortion;  ' 
and  so  a  majority  of  the  judges  constituting  the  General  Term 
held.  We  are  of  opinion  that  those  learned  judges  fell  into 
error. 

The  threat  of  the  defendant  was  plainly  an  act  done  with  in- 
tent to  commit  the  crime  of  extortion,  and  it  tended,  but  failed, 


PEOPLE  V.  GARDNER. 

to  effect  its  commission,  and,  therefore,  the  act  was  plainly  within 
the  statute  an  attempt  to  commit  the  crime.  The  condition  o£ 
Mrs.  Amos'  mind  was  unknown  to  the  defendant.  If  it  had  been 
such  as  he  supposed,  the  crime  could  have  been  and  probably 
would  have  been  consummated.  His  guilt  was  just  as  great  as  if 
he  had  actually  succeeded  in  his  purpose.  His  wicked  motive  was 
the  same,  and  he  had  brought  himself  fully  and  precisely  within 
the  letter  and  policy  of  the  law.  This  crime  as  denned  in  the 
statute  depends  upon  the  mind  and  intent  of  the  wrongdoer,  and 
not  on  the  effect  or  result  upon  the  person  sought  to  be  coerced. 
As  said  in  People  v.  Moran  (123  N.  Y.  254),  where  the  defend- 
ant was  convicted  of  an  attempt  to  commit  the  crime  of  larceny 
by  thrusting  his  hand  into  the  pocket  of  a  woman  which  was  not 
shown  to  contain  anything,  "the  question  whether  an  attempt  to 
commit  a  crime  has  been  made,  is  determinable  solely  by  the  con- 
dition of  the  actor's  mind  and  his  conduct  in  the  attempted  consum- 
mation of  his  design.  *  *  *  An  attempt  is  made  when  an 
opportunity  occurs  and  the  intending  perpetrator  has  done  some 
act  tending  to  accomplish  his  purpose,  although  he  is  baffled  by 
an  unexpected  obstacle  or  condition."  In  Commonwealth  v. 
Jacobs  (9  Allen,  274)  the  defendant  was  convicted  of  soliciting 
a  person  to  leave  the  commonwealth  for  the  purpose  of  enlisting 
in  military  service  elsewhere,  although  such  person  was  not  fit 
to  become  a  soldier,  and  there  it  was  said:  "Whenever  the  law- 
makes  one  step  toward  the  accomplishment  of  an  unlawful  ob- 
ject, with  the  intent  or  purpose  of  accomplishing  it,  criminal,  a 
person  taking  that  step,  with  that  intent  or  purpose,  and  himself 
capable  of  doing  every  act  on  his  part  to  accomplish  that  object, 
cannot  protect  himself  from  responsibility  by  showing  that,  by 
reason  of  some  fact  unknown  to  him  at  the  time  of  his  criminal 
attempt,  it  could  not  be  fully  carried  into  effect  in  the  particular 
instance."  It  is  now  the  established  law,  both  in  England  and  in 
this  country,  that  the  crime  of  attempting  to  commit  larceny 
may  be  committed,  although  there  was  no  property  to  steal,  and 
thus  the  full  crime  of  larceny  could  not  have  been  committed. 
(Eeg.  v.  Brown,  L.  R.  [24  Q.  B.  Div.]  357;  Reg.  v.  Ring,  66 
Law  Times  R.  300;  Commonwealth  v.  McDonald,  5  Cush.  365; 
People  v.  Jones,  46  Mich.  441;  State  v.  Wilson,  30  Conn.  500; 
Clark  v.  State,  86  Tenn.  511;  State  v.  Beal,  37  Ohio  St.  108; 


164  NATURE   AND   ELEMENTS. 

Rogers  v.  Commonwealth,  5  S.  &  R.  463;  Hamilton  v.  State,  36 
Ind.  280.)  In  Rex  v.  Holden  (Russ.  &  Ry.  154)  it  was  held  on 
an  indictment  under  a  statute  against  passing   or   disposing  of 
forged  bank  notes,  with  intent  to  defraud,  that  it  was  no  defence 
that  those  to  whom   the   notes   were   passed   knew  them  to  be 
forged,  and,  therefore,  could  not  be  defrauded.  In  Reg.  v.  Good- 
child  (2  Carr.  &  Kir.  293)  and  Reg.  v.  Goodall  (2  Cox  Cr.  C. 
41)  it  was  held  under  a  statute  making  it  a  felony  to  administer 
poison  or  use  any  instrument  with  intent  to  procure  the  miscar- 
riage of  any  woman,  that  the  crime  could  be  committed  in  a  case 
where  the  woman  was  not  pregnant.   It  has  been  held  in  several 
cases  that  there  may  be  a  conviction  of  an  attempt  to  obtain  prop- 
erty by    false  pretences,  although  the  person  from  whom  the  at- 
tempt was  made  knew  at  the  time  that  the  pretences  were  false, 
and  could  not,  therefore,  be  deceived.    (Regina  v.  Hensler,  11 
Cox  Cr.  C.  570;  Reg.  v.  Banks,  12  id.  393;  Reg.  v.  Francis,  Id. 
613;  Reg.  v.  Ransford,  13  id.  9;  Reg.  v.  Jarrnan,  14  id.  112; 
Reg.  v.  Eagleton,  Dearsly's  Crown  Cases,  515;  Reg.  v.  Roebuck, 
D.  &  B.  Cr.  Cas.  24;  Reg.  v.  Ball,  1  Carrington  &  Marshman, 
249;  People  v.  Stites,  75  Cal.  570;  Hamilton  v.  State,  36  Ind. 
280;  People  v.  Bush,  4  Hill,  133;  People  v.  Lawton,  56  Barb. 
126;  McDermott  v.  People,  5  Park.  Cr.  Cases,  104;  Mackesey  v. 
People,  6  id.  114.)    And  to  the  same  effect  are  the  text  books  on 
criminal  law.   (1  Bishop  on  Criminal  Law,  Sec.  723,  et  seq.)   So 
far  as  I  can  discover  there  is  absolutely  no  authority  upholding 
the  contention  of  the  learned  counsel  for  the  defendant,  that  be- 
cause the  defendant  did  not  inspire  fear  in  the  mind  of  Mrs. 
Amos  by  his  threats,  and  thus  could  not  have  been  guilty  of  the 
completed  crime  of  extortion,  therefore,  he  cannot  be  convicted  of 
attempting  to  commit  the  crime.  That  contention  is,  as  I  believe, 
also  without  any  foundation  in  principle  or  reason. 

Therefore,  upon  the  facts  alleged  in  the  indictment  and  ap- 
pearing upon  the  trial,  the  defendant  could  be  convicted  of  an 
attempt  to  commit  the  crime  of  extortion,  and  the  General  Term, 
in  reversing  the  judgment,  should  not,  therefore,  have  refused 
to  grant  a  new  trial  and  have  discharged  the  defendant. 

Our  attention  has  been  called  on  behalf  of  the  defendant  to 
many  other  exceptions  taken  by  his  counsel  during  the  progress 
of  the  trial  which,  it  is  claimed,  point  out  errors.  "We  have  ex- 


PEOPLE  V.  GARDNER.  165 

amined  all  of  them,  but  do  not  deem  it  important  to  call  particu- 
lar attention  to  but  two. 

Upon  the  trial  it  was  proved  that  defendant  and  Mrs.  Amos 
were  together  upon  certain  occasions  having  a  material  bearing 
upon  the  case,  and  a  witness  was  called  to  identify  the  defendant 
as  the  person  who  was  in  her  company  at  one  of  the  times  and 
places  referred  to.  The  witness  was  asked:  "Do  you  know  Mr, 
Gardner?"  Answer:  "I  do  not."  Question:  "Would  you  know 
him  if  you  saw  him?"  Answer:  "Yes,  sir."  Then  the  court 
directed  the  defendant  to  stand  up.  The  defendant's  counsel  ob- 
jected to  his  standing  up,  or  that  he  should  be  compelled  to  stand 
up,  or  to  testify  against  himself.  The  court  replied:  "The  pri- 
soner will  rise;  stand  him  up."  And  then,  against  the  objection 
of  his  counsel,  the  defendant  was  forcibly  compelled  to  stand  up, 
and  then  he  was  identified  by  the  witness.  It  is  now  claimed  on 
his  behalf  that  this  action  on  the  part  of  the  court  violated  his 
constitutional  rights  by  compelling  him  to  be  a  witness  against 
himself.  (N.  Y.  Constitution,  Art.  1,  Sec.  6;  U.  S.  Constitution, 
amendment  5.)  We  do  not  think  that  the  defendant's  constitu- 
tional right  was  violated,  or  that  he  was  compelled,  within  the 
meaning  of  the  constitutional  provisions  referred  to,  to  give 
evidence  against  himself.  He  was  bound  to  be  in  court  and  in 
the  presence  of  the  jury,  the  recorder  and  the  witnesses  who 
might  be  there.  The  recorder,  the  jurors  and  the  witnesses  had  the 
right  to  see  him,  and  he  had  the  right  to  see  them.  It  was  neces- 
sary that  he  should  be  identified  as  the  person  named  in  the  in- 
dictment and  charged  with  the  crime.  His  mere  standing  up  did 
not  identify  him  with  the  alleged  crime,  and  did  not  disclose  any 
act  connected  with  the  crime.  There  was  nothing  on  his  person 
or  in  his  appearance  that  in  any  way  connected  him  with  the  crime, 
or  furnished  any  evidence  whatever  of  his  guilt.  Suppose  he  had 
come  into  court  with  his  face  veiled,  could  not  the  recorder 
compel  him  to  remove  the  veil  that  his  face  might  be  seen? 
Could  he  not  compel  him  to  remove  his  hat;  to  stand  or  sit  in  the 
prisoners'  dock?  In  the  examination  of  the  witness  could  not  the 
district  attorney  have  pointed  to  the  defendant  and  asked  the 
witness  whether  he  was  the  person  he  had  seen  with  Mrs.  Amos? 
Instead  of  compelling  the  defendant  to  stand  up,  could  not  the 
recorder  have  directed  the  witness  to  go  to  the  place  where  he 


166  NATURE   AND   ELEMENTS. 

was  and  look  at  him  with  the  view  of  identifying  him?  If  all 
these  things  could  be  done  without  violating  the  rights  of  the 
prisoner,  how  is  it  possible  to  say  that  he  was  harmed,  or  that  his 
constitutional  right  was  invaded  by  compelling  him  to  stand  up 
for  the  purpose  of  identification?  For  the  orderly  conduct  of  a 
criminal  court  it  is  requisite  that  the  trial  judge  should  have  the 
power  to  say  what  place  the  prisoner  shall  occupy  in  the  court 
room,  and  whether  at  any  time  he  shall  stand  or  sit,  and  be 
covered  or  uncovered;  and  he  must  have  the  power  at  all  times 
to  keep  the  prisoner  within  sight  of  the  court,  the  jury,  the  coun- 
sel and  the  witnesses.  The  history  of  the  constitutional  provision 
referred  to  clearly  demonstrates  that  it  was  not  intended  to  reach 
a  case  like  this.  (Story's  Con.  Lim.  Sec.  1788;  1  Steph.  Hist.  Cr. 
L.  440.)  The  main  purpose  of  the  provision  was  to  prohibit  the 
compulsory  oral  examination  of  prisoners  before  trial,  or  upon 
trial,  for  the  purpose  of  extorting  unwilling  confessions  or  de- 
clarations implicating  them  in  crime.  It  could  reach  further 
only  in  exceptional  and  peculiar  cases  coming  within  the  spirit 
and  purpose  of  the  inhibition.  A  murderer  may  be  forcibly  taken 
before  his  dying  victim  for  identification,  and  the  dying  declara- 
tions of  his  victim  may  then  be  proved  upon  his  trial  for  his 
identification.  A  thief  may  be  forcibly  examined  and  the  stolen 
property  may  be  taken  from  his  person  and  brought  into  court 
for  his  condemnation.  A  prisoner's  person  may  be  examined  for 
marks  and  bruises  ,  and  then  they  may  be  proved  upon  his  trial 
to  establish  his  guilt;  and  it  would  be  stretching  the  constitu- 
tional inhibition  too  far  to  make  it  cover  such  cases  and  cases 
like  this,  and  the  inhibition  thus  applied  would  greatly  embarrass 
the  administration  of  justice.  In  Rice  v.  Rice  (  47  N".  J.  Eq.  R. 
559)  Beasley,  C.  J.,  said:  "That  every  court  of  judicature,  as  an 
indispensable  attribute,  is  possessed  of  the  power  to  require  every 
person  who  is  present  as  a  party,  or  who  is  a  witness  under  ex- 
amination, to  disclose  his  or  her  face  to  the  court  or  to  the  jury, 
if  there  be  one,  would  not  seem  in  any  degree  questionable. 
Without  such  exposure  there  would  be  no  certainty  who  the  per- 
son really  was  who  assumed  to  act  as  party  or  witness.  To  order 
such  persons  to  expose  their  faces  to  view  is  common  usage  in 
every  court,  and  thus  far  the  practice  seems  not  to  be  open  to  any 
question."  Our  attention  is  called  to  authorities  bearing  more 


PEOPLE  V.  GARDNER.  167 

or  less  upon  the  question  we  are  now  considering,  and  we  find 
that  they  are  not  all  harmonious.  In  State  v.  Jacobs  (5  Jones 
[N.  C.],  259)  it  was  held  that  a  judge  has  no  right  to  compel  a 
defendant  in  a  criminal  prosecution  to  exhibit  himself  to  the 
inspection  of  the  jury  for  the  purpose  of  enabling  them  to 
determine  his  status  as  a  free  negro.  There  the  defendant  was 
indicted  as  a  free  negro  for  carrying  arms,  and  it  became  neces- 
sary for  the  prosecution  to  show  that  he  was  a  negro,  and  in  that 
State  a  man  was  held  to  be  a  negro  who  had  as  much  as  one-six- 
teenth part  of  African  blood  in  his  veins.  There  the  defendant 
was  compelled  to  stand  up  that  the  jury  might  see  whether  he 
was  a  negro  or  not,  and  to  determine  that  fact  from  their  own 
observation.  Thus  there  was  a  sense  in  which  it  could  be  said 
that  the  defendant  was  compelled  to  furnish  evidence  against 
himself  upon  a  vital  issue  to  be  tried,  and  so  that  case  is  dis- 
tinguishable from  this.  But  no  authority  was  cited  to  uphold 
that  decision,  and  we  entertain  no  doubt  that  it  was  erroneous. 
The  judge  writing  the  opinion  said:  "Admitting  that  the  State 
has  a  right  to  compel  his  presence  at  the  trial,  it  does  not  follow 
that  he  is  bound  to  stand  or  sit  within  view  of  the  jury."  Can 
this  observation  be  correct?  Certainly,  in  this  State  it  cannot  be 
maintained  that  a  prisoner,  when  on  trial,  could  not  be  compelled 
to  stand  or  sit  in  view  of  the  jury.  It  is  the  right  of  the  prisoner 
to  be  in  the  presence  and  view  of  the  jury,  and  it  is  the  right  of 
the  prosecution  to  have  him  in  the  view  of  the  presiding  judge 
and  jury  and  the  counsel  engaged  in  the  trial.  And  whether  at 
any  particular  time  he  shall  stand  up  or  sit  down  in  the  presence 
of  the  jury  must  be  a  matter  resting  in  the  discretion  of  the  trial 
judge,  and  in  no  sense  can  it  be  said  that  by  the  exercise  of  such 
discretion  his  constitutional  right  is  involved. 

In  the  case  of  the  State  v.  Johnson  (67  N.  C.  55)  the  defend- 
ant was  on  trial  for  rape,  and  on  the  trial  the  prosecutrix  was 
asked  by  the  prosecuting  attorney  to  look  around  the  court  room 
and  see  if  she  could  identify  the  guilty  party,  and  she  pointed  to 
the  prisoner  and  said,  "That  is  the  black  rascal."  It  was  insisted 
that  this  was  to  make  the  prisoner  furnish  evidence  against  him- 
self; that  he  had  the  right  to  be  there  and  confront  his  accusers, 
and  that  for  the  State  to  take  advantage  of  his  presence  to  have 
him  pointed  out  and  identified  placed  him  in  the  dilemma  of 


168  NATURE   AND   ELEMENTS. 

either  abandoning  his  constitutional  right  to  be  present  or  of 
affording  the  means  of  his  conviction  by  its  exercise.  The  court 
held  against  this  contention,  and  that  no  error  was  committed. 
Suppose  in  that  case  the  court  had  placed  the  prisoner  where  he 
would  have  been  conspicuously  in  view  of  the  court,  the  jury 
and  the  witnesses,  and  the  prosecutrix  had  then  identified  him, 
would  his  constitutional  right  have  been  invaded?  And  if  he  had 
been  compelled  to  stand  up  would  he  have  been  compelled  within 
the  meaning  of  the  Constitution,  to  give  evidence  against  him- 
self? We  think  not.  We  are,  therefore,  of  opinion  that  no  error 
was  committed  in  the  case  in  compelling  the  defendant  to  stand 
up  for  identification. 

It  appeared  upon  the  trial  by  the  witnesses  for  the  prosecu- 
tion, that  prior  to  the  time  of  the  alleged  offence  the  defendant 
was  much  in  the  company  of  Mrs.  Amos;  that  he  visited  her  at 
her  house;  that  she  visited  him  at  his  house;  that  he  frequently 
rode  with  her  through  the  streets  of  New  York,  and  visited 
saloons  and  drank  wine  with  her.  These  facts  were  proved  on 
the  part  of  the  prosecution  to  show  his  relations  with  Mrs. 
Amos  and  his  motives,  and  as  links  in  the  chain  showing  the 
commission  of  the  alleged  crime.  The  defendant  offered  to  show 
by  himself  and  other  witnesses  that  in  his  relations  with  Mrs. 
Amos  he  was  acting  under  the  directions  of  officers  of  the  So- 
ciety for  the  Prevention  of  Crime,  for  the  purpose  of  gaining 
her  confidence  and  good  will,  and  securing  from  her  an  affidavit 
which  could  be  used  for  the  arrest  of  a  former  agent  of  that 
society  who  was  supposed  to  be  engaged  in  extorting  money  from 
keepers  of  houses  of  prostitution  by  threats  of  prosecution,  and 
the  recorder  excluded  the  evidence.  It  is  now  claimed  that  in 
such  exclusion  error  was  committed.  We  think  the  evidence 
should  have  been  received.  The  defendant  should  have  been 
permitted  to  prove  that  he  acted  under  the  general  instructions 
of  the  Society  of  the  Prevention  of  Crime  whose  agent  he  was, 
and  that  he  reported  his  acts  to  its  officers  and  followed  their 
directions.  Such  proof  would  have  had  a  tendency  to  put  an  in- 
nocent aspect  upon  his  acts  which  would  otherwise  seem  to  be  a 
part  of  the  scheme  to  commit  the  crime  with  which  he  was 
charged.  It  is  claimed  on  behalf  of  the  People  that  the  exclusion 
of  this  evidence  was  not  harmful  to  the  defendant  as  the  facts 


PEOPLE  V.  GARDNER.  169 

were  nevertheless  proved.  We  have  carefully  read  all  the 
evidence,  and  we  are  not  satisfied  that  the  defendant  did  not 
suffer  harm  from  the  rulings  complained  of.  The  recorder  had 
laid  down  the  law  by  these  rulings,  and  the  defendant  did  not 
have  the  benefit  of  the  evidence  offered  in  the  submission  of  the 
case  to  the  jury.  The  case  went  to  the  jury  with  the  rulings  of 
the  recorder  during  the  progress  of  the  trial  that  that  kind  of 
evidence  was  incompetent  and  illegal. 

Other  things  transpired  during  the  progress  of  the  trial  to 
which  our  attention  has  been  called,  which,  though  not  present- 
ing legal  errors  which  would  call  for  a  reversal  of  the  judgment 
of  conviction,  were  yet  of  such  a  character  that  they  may  have 
been  harmful  and  probably  were  harmful  to  the  defendant.  We 
will  not  comment  upon  them,  as  they  may  not,  and  probably  will 
not,  appear  upon  another  trial. 

On  account  of  the  error  above  pointed  out,  while  the  General 
Term  should  have  reversed  the  judgment  below,  it  should  also 
have  granted  a  new  trial. 

Our  conclusion,  therefore,  is  that  the  order  of  the  General 
Term  should  be  so  modified  as  simply  to  reverse  the  judgment  of 
conviction  and  to  grant  a  new  trial. 

All  concur. 
Ordered  accordingly. 

People  v.  Murray,  14  Cal.  159;  U.  S.  v.  Pryor,  3  Wash.  C.  C.  234;  Peo- 
ple v.  Moran,  123  N.  Y.  254;  Com.  v.  Jacobs,  9  Allen  274;  State  v.  Jor- 
dan, 75  N.  C.  27;  Com.  v.  Tolman,  149  Mass.  229;  Hamilton  v.  State,  36 
Ind.  280;  Mullen  v.  State,  45  Ala.  43;  Barcus  v.  State,  49  Miss.  17;  N.  Y. 
Penal  Code,  Sec.  34;  Clark,  p.  103  et  seq.;  Bishop,  Sec.  723  et  seq.  737; 
May,  Sec.  18,  183;  Wharton,  Sec.  173;  Hawley  &  McGregor,  p.  90. 

NOTE.— The  act  must  be  proximately  connected  with  the  ultimate  re- 
sult and  not  done  in  mere  preparation  for  the  final  act. 

GriflBn  v.  State,  26  Ga.  493;  People  v.  Murray,  14  Cal.  159;  U.  S.  v. 
Stephens,  8  Sawy.  116;  Bish.  I.,  Sec.  764;  Wharton,  Sec.  178;  Hawley  & 
McGregor,  p.  91. 

NOTE.— A  solicitation  is  not  an  attempt;  nor  is  an  endeavor  to  solicit 
indictable. 

Smith  v.  Com.,  54  Pa.  209;  Lamb  v.  State,  67  Md.  524;  King  v.  Hig- 
gins,  2  East  5;  Clark,  p.  115;  Wharton,  Sec.  179;  Hawley  &  McGregor, 
p.  93,  note;  May,  185;  Bishop  I.,  Sec.  767. 


170  NATURE  AND  ELEMENTS. 

NOTE.— The  ultimate  result  must  be  such  as  can  be  apparently  In  the 
eyes  of  the  law  consummated  by  the  person  at  the  time  the  act  Is  done 
in  furtherance  of  It. 

Reg.  v.  Brown,  24  Q.  B.  D.  357;  State  v.  Beal,  37  Ohio  St  108;  State 
0.  Wilson,  30  Conn.  500;  Com.  v.  McDonald,  5  Gush.  365;  People  v. 
Moran,  123  N.  Y.  254;  People  v.  Jones,  46  Mich.  441;  Chirk  v.  State,  86 
Tenn.  511;  People  v.  Lee  Kong,  95  Cal.  666;  State  v.  Fitzgerald,  49  la. 
260;  Kunkle  v.  State,  32  Ind.  220;  People  v.  Ryan,  55  Hun.  214;  In  re 
Lloyd,  51  Kan.  501;  Cox  v.  People,  82  111.  191;  Com.  v.  Harrington,  20 
Mass.  26;  Clark,  p.  109;  Bishop  I.,  Sec.  746;  Hawley  &  McGregor,  p.  94; 
May,  184;  Wharton,  Sec.  183. 


d. 
Conspiracies. 

A  conspiracy  is  an  agreement  or  co-operation  of  persons 
in  accomplishing  an  unlawful  purpose,  or  a  lawful  purpose 
by  unlawful  means. 

The  agreement  perfects  the  offence,  and  it  is  not  neces- 
sary by  the  common  law  to  prove  an  overt  act  in  order  to 
secure  a  conviction  for  conspiracy. 

THOMPSON  v.  STATE. 

Supreme  Court  of  Alabama,  1895. 
106  Ala.  67;  17  So.  512. 

BEICKELL,  C.  J.  The  indictment  contains  two  counts,  the  first 
charging  that  the  defendants  "conspired  together  to  unlawfully 
take  one  thousand  dollars  in  money,  the  property  of  Julius  C. 
Hudspeth,  from  his  person,  and  against  his  will,  by  violence  to 
his  person,  or  by  putting  him  in  such  fear  as  unwillingly  to  part 
with  the  same."  The  second  count  charged  that  the  defendants 
"unlawfully  conspired  together  to  unlawfully,  and  with  malice 
aforethought,  kill  Julius  C.  Hudspeth."  On  the  trial  the  State 
voluntarily  elected  to  prosecute  only  for  the  offence  charged  in 
the  first  count,  thereby,  for  all  the  purposes  of  the  trial,  eliminat- 
ing the  second  count  as  effectually  as  if  it  had  not  formed  part 
of  the  indictment;  and  it  is  the  sufficiency  of  the  first  count, 


THOMPSON  V.  STATE.  171 

alone,  which  is  now  open  for  consideration.  The  offence,  the 
commission  of  which  is  averred  to  have  been  the  purpose  of  the 
conspiracy,  is  described  in  the  count  in  the  words  of  an  indict- 
ment for  robbery,  as  prescribed  by  the  Code  (Cr.  Code,  p.  276, 
form  76);  and  in  other  respects  the  count  is  in  close  analogy  to  the 
form  prescribed  for  a  conspiracy  to  murder  (Id.  p.  269,  form  29). 
The  statute  prescribing  forms  of  indictment  declares  that  the  forms 
are  sufficient  in  all  cases  to  which  they  are  applicable,  and  that 
in  other  cases  analogous  forms  may  be  used.  Id.  Sec.  4899.  The 
demurrers  to  the  count  were  not  well  taken,  and  were  properly 
overruled.  3  Brick.  Dig.  pp.  279,  280,  Sees.  447-449. 

It  is  a  very  general  rule,  applicable  alike  in  civil  and  criminal 
cases,  that  if  a  witness  has  given  testimony,  in  the  course  of  a 
judicial  proceeding  between  the  parties  litigant,  before  a  compe- 
tent tribunal,  and  subsequently  dies;  or,  if  not  dead,  becomes  in- 
sane; or,  after  diligent  search,  is  not  to  be  found  within  the 
jurisdiction  of  the  court;  or  if  that  which  is  equivalent  be  shown, 
that  he  has  left  the  State  permanently,  or  for  such  an  indefinite 
time  that  his  return  is  contingent  and  uncertain, — it  is  admis- 
sible to  prove  the  substance  of  the  testimony  he  gave  formerly. 
1  Whart.  Ev.  Sees.  177-180;  1  Greenl.  Ev.  Sees.  163-166;  1 
Brick.  Dig.  p.  878,  Sees.  1064-1072;  3  Brick.  Dig.  p.  441,  Sees. 
523-533;  Lowe  v.  State,  86  Ala.  47,  5  South.  435;  South  v. 
State,  86  Ala.  617,  6  South.  52;  Perry  v.  State,  87  Ala.  30,  6 
South.  425;  Pruitt  v.  State,  92  Ala.  41,  9  South.  406;  Lucas  v. 
State,  96  Ala.  51,  11  South.  216.  The  rule  is  founded  upon  a 
principle  of  necessity,  rather  than  upon  any  ideas  of  mere  con- 
venience. Parties  should  not  lose  the  benefit  of  evidence  taken 
on  a  former  trial,  when  the  same  issues  were  involved,  and  there 
was  full  opportunity  of  examination  and  cross-examination,  be- 
cause events  or  contingencies  have  arisen  which  render  the  per- 
sonal presence  of  the  witness  impossible,  or,  if  possible,  his  ex- 
amination impracticable,  or  because  the  witness  is  without  the 
jurisdiction  of  the  court,  and  his  personal  presence  cannot  be 
compelled.  The  rule  is,  however,  exceptional,  and  it  is  essential 
to  the  admissibility  of  the  evidence  that  some  one  of  the  con- 
tingencies which  are  deemed  to  create  the  necessity  be  satisfac- 
torily shown.  In  the  present  case  the  fact  which  was  supposed 
to  authorize  the  introduction  of  the  evidence  given  by  the  wit- 


172  NATURE  AND  ELEMENTS. 

ness  on  the  preliminary  examination  before  the  justice  of  the 
peace  was  his  absence  from  the  State  at  the  time  of  the  trial.  The 
evidence  was,  without  conflict,  that  the  witness  was  a  minor,  and 
his  home  was  with  his  father,  in  the  county  in  which  the  trial 
was  had,  and  that  when  he  left  home,  but  a  short  time  before  the 
trial,  for  the  State  of  Florida,  it  was  avowedly  for  a  mere  tem- 
porary purpose,  and  with  the  intent  of  returning  to  the  term  of 
the  court  at  which  the  trial  was  had.  The  opposing  evidence  is 
that  of  a  witness  who,  two  days  before  the  trial,  saw  the  witness 
in  Florida,  and  he  declared  that  he  had  a  job  of  work,  and  in- 
tended to  remain,  and  was  not  coming  to  court.  The  reasonable 
hypothesis  the  evidence  supports  is  not  that  the  witness  had  per- 
manently abandoned,  or  intended  a  permanent  abandonment  of 
his  home  in  this  State;  that  his  absence  was  merely  temporary. 
Though  the  time  of  returning  is  not  shown  affirmatively,  it  is  not 
shown  to  have  been  uncertain  and  contingent.  There  was  no 
duty  resting  upon  the  witness  to  return  to  that  term  of  the  court, 
or  to  be  present  at  the  trial  of  the  case.  He  had  not  been 
summoned,  nor  was  he  under  bond  for  appearance,  so  far  as  it  is 
shown,  nor  had  the  State  any  reason  to  expect  his  appearance  or 
presence.  We  are  not  of  opinion  that  an  event  or  contingency 
was  shown  which  authorized  the  introduction  of  the  evidence 
the  witness  had  given  on  the  preliminary  examination  before  the 
justice  of  the  peace.  We  deem  it  proper  to  say  that  it  was  not  an 
objection  to  the  admissibility  of  the  evidence  that  the  justice  of 
the  peace  had  not  reduced  to  writing  the  examination  of  the  wit- 
ness, as  is  required  by  the  statute.  The  neglect  of  the  justice  to 
perform  this  duty  cannot  prejudice  the  parties,  nor  does  it  lessen 
or  add  to  the  tests  upon  which  the  admissibility  of  the  testimony 
depends,  ^or  was  the  evidence  inadmissible  because  the  magis- 
trate could  not,  and  did  not  assume  to,  repeat  the  precise  words 
of  the  witness.  All  that  was  essential  was  that  he  should  remem- 
ber and  state  the  substance  of  what  the  witness  had  testified  to 
formerly, — the  substance  of  the  examination  by  the  State,  and  of 
the  cross-examination  by  the  defendants.  Gildersleeve  v.  Cara- 
way, 10  Ala.  260;  Davis  v.  State,  17  Ala.  354.  We  may  remark 
that  if,  on  a  succeeding  trial,  the  witness  should  be  absent,  and 
the  introduction  of  his  evidence  on  the  preliminary  examination 
before  the  justice  is  deemed  material,  its  admissibility  will  de- 
pend on  the  state  of  facts  then  existing. 


THOMPSON  V.  STATE.  173 

The  instruction  given  by  the  court  touching  a  reasonable  doubt 
which  requires  an  acquittal  of  a  criminal  charge  is  clear  and  pre- 
cise, and  in  accordance  with  all  authority.  Though  an  exception 
was  reserved  to  it,  in  the  argument  of  counsel  here  its  correct- 
ness is  not  questioned.  Instructions  requested  must  be  clear,  pre- 
cise statements  of  the  law  applicable  to  the  evidence;  must  be 
free  from  involvement  or  obscurity,  of  all  tendency  to  mislead  or 
confuse  the  jury;  must  not  be  invasive  of  the  province  of  the 
jury,  or  argumentative.  If  subject  to  any  one  of  these  objec- 
tions, there  is  no  revisable  error  in  refusing  them. 

The  first  instruction  requested  by  the  defendants  not  only 
gives  undue  prominence  to  the  evidence  of  the  witnesses  who 
were  named  in  it,  but  was  invasive  of  the  province  of  the  jury 
to  consider  the  testimony  of  these  witnesses  in  connection  with 
all  the  evidence  which  had  been  introduced  touching  the  facts  to 
which  they  testified.  The  precise  meaning  or  purpose  of  the  sec- 
ond instruction  is  not  clear.  Time  and  place  are  material  in- 
quiries on  every  criminal  trial.  The  burden  rests  on  the  State  to 
prove  that  the  offence  charged  was  committed  within  the  county 
in  which  the  venue  is  laid,  and  within  a  time  to  avoid  the  bar  of 
the  statute  of  limitations.  The  burden  is  not  increased,  whatever 
may  be  the  nature  or  character  of  the  defence.  It  is  not,  of  con- 
sequence, true,  as  a  legal  proposition,  as  this  instruction  asserts, 
or  as  it  would  probably  have  been  by  the  jury  construed  to  as- 
sert, that  time  and  place  became  a  material  inquiry  only  when  an 
alibi  was  interposed  as  a  defence. 

The  third  instruction  is  founded  in  a  misconception  of  the  of- 
fence charged,  and  is  not,  in  any  of  its  postulates  of  fact,  well 
founded.  A  conspiracy  is,  in  and  of  itself,  a  distinct,  substantive 
offence, — complete  when  the  corrupt  agreement  is  entered  into. 
The  agreement  is  the  gist  of  the  offence.  It  is  not  necessary  that 
any  act  should  be  done  in  pursuance  of  the  agreement,  nor  is  the 
offence  purged  because  subsequent  events  may  render  the  con- 
summation of  the  agreement  impossible,  or  because  the  conspira- 
tors are  entrapped  into  an  attempt  at  its  consummation. 

The  fourth  instruction  assumes  as  matter  of  fact  that  which  it 
was  the  province  of  the  jury  to  ascertain  and  determine, — that, 
to  employ  its  own  words,  the  recollection  of  the  witnesses  as  to 
the  testimony  given  by  Dykes  on  the  preliminary  examination 


174  NATURE  AND  ELEMENTS. 

before  the  justice  was  "indistinct  as  to  a  great  deal  of  his  testi- 
mony." Besides,  in  form  and  expression,  the  instruction  was  a 
mere  argument. 

The  fifth,  eighth,  and  ninth  instructions  may  be  considered 
together,  and  each  is  subject  to  kindred  objections.  The  indict- 
ment charges  the  offence  to  have  been  committed  in  Henry 
County,  and  includes  the  charge  that  the  time  of  its  commission 
was  within  12  months  prior  to  its  finding.  These  were  the  facts 
the  State  was  under  the  burden  of  proving.  There  was  no  burden 
resting  upon  it  to  prove  that  the  conspiracy  was  formed  at  the 
time  or  place  stated  in  the  fifth  and  eighth  instructions.  These 
instructions  confound  the  allegations  of  the  indictment  with  the 
evidence  which  the  State  introduced.  They  are  wanting  in  clear- 
ness and  precision,  and  were  calculated  to  mislead  or  confuse  the 
jury.  The  ninth  affirms  that  the  State  had  elected  to  prosecute 
on  the  testimony  of  a  particular  witness,  and  of  such  election  the 
record  furnishes  no  evidence,  unless  it  be  inferred  from  the  ten- 
dencies of  the  evidence  the  State  introduced. 

The  sixth  instruction  is  subject  to  the  objection  that  it  gives 
undue  prominence  to  the  testimony  of  particular  witnesses. 

The  offence  charged  against  the  defendants  was  the  con- 
spiracy,— not  any  act  done  or  attempted  in  its  consummation. 
Of  the  fact  of  the  conspiracy, — of  the  corrupt  agreement, — the 
evidence  must  have  satisfied  the  jury  beyond  a  reasonable  doubt; 
and,  if  the  jury  could  reconcile  all  the  criminating  evidence  on 
a  reasonable  hypothesis  consistent  with  the  innocence  of  the  de- 
fendants, it  was  a  duty  to  adopt  that  hypothesis.  This  is  far  from 
being  the  proposition  asserted  in  the  seventh  instruction,  which 
mingles  the  evidence  touching  the  going  to  Hudspeth's  house 
after  the  conspiracy  was  formed,  and  the  evidence  of  the  con- 
spiracy, and  then,  in  the  alternative,  requires  an  acquittal  if  the 
jury  could  account  for  the  evidence  of  either  on  a  reasonable 
hypothesis  consistent  with  the  innocence  of  the  defendants.  It 
may  be,  the  jury  could  account  for  the  fact  that  the  defendants 
went  to  Hudspeth's  house  on  some  reasonable  hypothesis  consist- 
ent with  their  innocence,  and  yet  be  unable  to  reconcile  all  the 
criminating  evidence  touching  the  conspiracy  on  any  reasonable 
hypothesis  consistent  with  innocence.  Yet,  framed  as  the  instruc- 
tion is,  in  that  event  the  jury  would  have  been  under  the  duty  of 


THOMPSON  V.  STATE.  175 

acquittal.  The  only  importance  of  the  fact  that  the  defendants 
went  to  Hudspeth's  house  lies  in  its  tendency  to  corroborate  the 
evidence  of  the  conspiracy.  There  is  no  aspect  in  which  the  in- 
struction can  be  considered  as  correct,  and  it  was  properly  re- 
fused. 

It  is  insisted  that  the  tenth  instruction  ought  to  have  been  given, 
because  there  is  an  absence  of  evidence  to  support  the  averment  of 
the  indictment  that  the  object  or  purpose  of  the  conspiracy  was 
to  rob  Hudspeth  of  $1000.  An  indictment  for  a  conspiracy  to  do 
an  act  which  is  a  well-known  felony  or  misdemeanor  at  common 
law  is  sufficient  if  it  describes  or  avers  in  general  terms  the  felony 
or  misdemeanor  intended  to  be  committed.  The  nature  of  the 
offence,  by  such  averment  or  description,  is  clearly  indicated,  and 
all  beyond  is  mere  matter  of  evidence  or  surplusage.  1  Bish.  Or. 
Proc.  Sec.  516;  4  Am.  &  Eng.  Enc.  Law,  623;  3  Greenl.  Ev. 
Sec.  395;  Com.  v.  Eastman,  1  Gush.  189.  It  was  immaterial 
whether  the  purpose  of  the  conspiracy  was  to  rob  Hudspeth  of 
$1  or  of  $1000.  The  degree  of  the  guilt  of  the  accused  was  not 
lessened  or  increased  because  of  the  insignificance  or  the  magni- 
tude of  the  value  of  that  which  it  was  intended  to  acquire  by  the 
robbery;  and,  if  this  were  an  indictment  for  robbery,  it  would 
not  be  necessary  to  prove  the  precise  sum  averred  to  have  been 
taken  from  the  person  of  the  party  robbed.  3  Greenl.  Ev.  Sec. 
224;  1  Bish.  Cr.  Proc.  Sec.  579.  The  averment  of  the  indict- 
ment, in  the  particular  we  are  considering,  belongs  to  that  class 
of  averments  which  are  not  descriptive  of  the  fact  or  character 
of  the  offence,  and  are  not  required  to  be  proven  with  any  degree 
of  precision.  1  Greenl.  Ev.  Sec.  65;  1  Bish.  Cr.  Proc.  Sec.  579. 

We  are  without  a  statute  declaring  a  conspiracy  formed  in  this 
State  to  commit  a  felony  or  a  misdemeanor  in  a  sister  State  an 
indictable  offence,  as  we  are  without  a  statutory  declaration  of 
the  elements  or  constituents  of  a  criminal  conspiracy.  The  Crimi- 
nal Code  declares  the  punishment  to  be  inflicted  for  the  offence 
of  a  conspiracy  to  commit  a  felony  or  a  misdemeanor,  and,  it 
may  be,  refers  exclusively  to  a  conspiracy  in  this  State  to  commit 
within  the  State  a  felony  or  misdemeanor,  as  the  Code  defines 
these  offences.  But  the  doctrine  has  long  been  established,  in 
civil  and  criminal  cases,  that  the  common  law,  so  far  as  adapted 
to  our  condition,  consistent  with  our  institutions,  and  unaffected 


176  NATURE  AND  ELEMENTS. 

by  legislation,  prevails  here.  1  Brick.  Dig.  p.  349,  Sees.  1-12. 
In  Pierson  v.  State,  12  Ala.  149,  it  was  held  that  the  common 
law  of  this  State  on  the  subject  of  homicide  is  derived  from,  and 
the  same  as,  the  common  law  of  England.  The  criminating  ele- 
ment and  constituent  of  an  indictable  conspiracy  is  the  vicious, 
unlawful  combination,  the  corrupt  and  corrupting  agreement; 
and  wherever  the  common  law  prevails,  if  the  combination  is 
formed,  and  the  agreement  entered  into,  to  commit  a  known 
felony,  malurn  in  se,  the  offence  is  complete.  There  needs  no 
overt  act, — no  effort  at  consummation.  The  combination  and 
agreement  are  of  the  essence,  the  gist  of  the  offence;  and  as  a 
distinct,  substantive  offence,  it  is  then  committed.  The  place  at 
which  it  is  intended  to  commit  the  felony  is  not  material.  It  is 
the  law  of  the  place  where  the  conspiracy  is  formed  which  is 
broken.  A  conspiracy,  at  common  law,  is  a  misdemeanor;  and 
the  Code  provides  the  punishment  which  is  to  be  inflicted  on  con- 
viction of  a  misdemeanor,  at  common  law,  the  punishment  of 
which  is  not  otherwise  particularly  specified.  It  is  apparent  from 
our  legislation,  and  its  history,  that  the  legislative  intent  is  to 
preserve,  not  to  impair  or  abrogate,  the  common  law,  so  far  as  it 
may  relate  to  civil  rights,  or  to  crimes,  is  adapted  to  our  condi- 
tion, and  not  inconsistent  with  our  institutions,  except  in  so  far 
as  it  is  superseded  by  express  or  repugnant  legislation.  Consider- 
ing, and  expressing  an  opinion  only  on,  the  precise  question  the 
record  presents,  we  have  no  hesitancy  in  declaring  that  it  is  an 
indictable  common-law  misdemeanor  to  enter  into  a  conspiracy 
in  this  State  to  commit  a  known  common-law  felony,  malum  in 
se,  in  a  sister  State.  1  Russ.  Crimes,  967;  1  "Whart.  Cr.  Law  (9th 
Ed.)  Sec.  287;  1  Bish.  Cr.  Law  (7th  Ed.)  Sec.  Ill;  State  v. 
Chapin,  17  Ark.  561;  Ex  parte  Rogers,  10  Tex.  App.  655; 
Johns  v.  State,  19  Ind.  421.  For  the  error  pointed  out  the  judg- 
ment must  be  reversed,  and  the  cause  remanded.  The  defend- 
ants will  remain  in  custody  until  discharged  by  due  course  of 
law. 

State  v.  Buchanan,  5  Har.  &  J.  317;  U.  S.  v.  Walsh,  5  Dill  58;  U.  S.  v. 
Barrett,  65  Fed.  62;  United  States  v.  Lancaster.  44  Fed.  896,  10  L.  R.  A. 
333;  Seville  v.  State,  49  Ohio  St  117,  15  L.  R.  A.  516;  Toledo  &  R.  R.  v. 
Penn.  Co.,  64  Fed.  Rep.  730,  19  L.  R.  A.  387;  U.  S.  v.  Cassidy,  67  Fed. 
698;  McKee  v.  State,  3  Ind.  378;  N.  Y.  Penal  Code,  Sec.  168;  Minn.  Stat. 


STATE  V.    BOWERS.  177 

1894,  Sec.  6423;  Clark  p.  117;  Bishop  I.,  Sec.  592;  Hawley  &  McGregor, 
p.  99;  May,  186;  Wharton,  Sec.  1337-1407;  The  Penal  Code  of  Pa.; 
Shields,  vol.  II.,  816  to  820. 

NOTE.— Some  States  by  statute  make  an  overt  act  necessary  to  com- 
plete a  conspiracy  while  others  do  not  require  it  when  the  contemplated 
act  is  a  felony  on  the  person  of  another,  arson  or  burglary. 

U.  S.  v.  Barrett,  65  Fed.  62;  U.  S.  v.  Wilson,  60  Fed.  890;  People  v. 
Flack,  125  N.  Y.  324;  People  v.  Sheldon,  39  N.  Y.  251;  U.  S.  v.  Lancaster, 
44  Fed.  896;  U.  S.  v.  Cassidy,  67  Fed.  698;  Pettibone  v.  U.  S.  148  U.  S. 
197;  N.  Y.  Penal  Code,  Sec.  171;  Minn.  Stat.  1894,  Sec.  6425;  Clark,  p. 
125;  May,  192. 

NOTE. — Husband  and  wife  cannot  be  convicted  of  conspiracy  being 
one  at  common  law. 

People  v.  Miller,  82  Cal.  107;  Clark,  p.  118;  Wharton,  Sec.  1392;  Haw- 
ley  &  McGregor,  101,  102. 


e. 
Solicitations. 

To  solicit  one  to  commit  an  act,  which  is  a  felony  or  a 
breach  of  the  peace,  is  of  the  nature  of  an  attempt  and  is  a 
criminal  act. 

•STATE  v.  BOWERS. 

Supreme  Court  of  South  Carolina,  1891. 
35  S.  C.  262;  14  S.  E.  488. 

MR.  CHIEF  JUSTICE  MC!VER.  The  defendant  was  indicted  for 
soliciting  another  to  commit  the  crime  of  arson,  the  charge  in 
the  indictment  being  that  the  defendant  "willfully,  unlawfully, 
and  maliciously  did  solicit,  entice,  and  endeavor  to  persuade  one 
Thompson  Mayer  feloniously,  willfully,  and  maliciously  to  set 
fire  to  and  burn  down  a  certain  house,  to  wit,  the  dwelling  house 
of  one  Anderson  G.  Mayer,  situate  in  the  county  and  State  afore- 
said, by  offering  to  pay  him,  the  said  Thompson  Mayer,  a  certain 
sum  of  money,  to  wit,  ten  dollars,  for  so  doing,  and  giving  him 
the  matches  with  instructions  to  use  them  in  setting  the  said  fire 
to  the  said  house." 
12 


178  NATURE  AND  ELEMENTS. 

It  is  stated  in  the  "Case"  that  defendant's  counsel  moved  to 
quash  the  indictment,  and  it  being  admitted  in  the  argument  of 
that  motion  that  the  house  had  not  been  set  on  fire  by  said  Thomp- 
son Mayer,  the  motion  was  granted.  The  Circuit  Judge,  how- 
ever, in  his  report  appended  to  the  "Case,"  says  the  motion  was 
not,  in  the  first  instance,  a  formal  motion  to  quash  the  indict- 
ment, but  rather  a  proposal  to  have  the  ruling  of  the  court  upon 
a  conceded  state  of  facts.  Whereupon  the  Circuit  Judge  ruled 
as  follows:  "The  indictment  does  not  charge  that  money  was 
given  to  Thompson  Mayer  as  a  bribe  to  burn  the  house  of  Andrew 
G.  Mayer;  nor  does  it  allege  that  the  solicitation  was  in  any 
manner  acceded  to  or  accepted.  There  is  no  allegation  that  there 
was  in  any  manner  the  slightest  movement  made  by  Thompson 
Mayer  toward  committing  the  proposed  arson.  It  was  conceded 
by  the  solicitor  that  he  could  not  prove  that  the  solicitation  was 
accepted;  but,  on  the  contrary,  it  would  appear  in  evidence  that 
it  was  promptly  rejected  and  exposed;  that  all  that  did  occur 
was  that  Bowers  promised  to  give  Mayer  ten  dollars  if  he  would 
burn  the  house,  and  handed  him  matches,  with  a  request  that  he 
would  burn  the  house,  which  request  and  promise  were  promptly  re- 
fused, and  that  ended  it."  His  honor  held  "that  a  naked  solicita- 
tion, promptly  rejected,  is  wanting  in  the  essential  elements  of 
an  attempt  to  commit  a  felony,  and  is  not  indictable."  He  there- 
fore suggested  that  an  order  should  be  drawn  quashing  the  in- 
dictment, which  was  accordingly  done. 

From  this  ruling  and  order  the  State  appeals  upon  the  several 
grounds  set  out  in  the  record,  which  substantially  make  the  single 
question  whether  solicitation  to  commit  a  felony,  accompanied 
with  an  offer  of  a  reward,  and  the  furnishing  of  the  means  to 
the  party  solicited,  of  committing  the  proposed  felony,  does  not 
constitute  a  criminal  offence  at  common  law,  and  as  such  is  in- 
dictable in  the  Court  of  Sessions  of  this  State.  It  is  not  denied 
that  an  attempt  to  commit  a  felony  is  an  indictable  offence,  and 
therefore  the  inquiry  here  is  narrowed  down  to  the  question 
whether  soliciting  another  to  commit  a  felony,  accompanied  by 
an  offer  of  a  reward  and  the  delivery  to  the  person  so  solicited  of 
the  means  by  which  the  felony  may  be  committed,  constitutes  an 
attempt  to  commit  a  felony,  where  the  offer  is  rejected  and  the 
means  furnished  are  not  used  for  the  purpose  indicated. 


STATE   V.  BOWERS.  179 

There  is  no  doubt  that  there  is  some  conflict  of  authority  as  to 
the  question  whether  mere  solicitation  to  commit  a  felony  consti- 
tutes of  itself  an  attempt  to  commit  the  felony,  one  of  the  lead- 
ing text  writers  on  criminal  law,  Wharton,  denying  the 
proposition,  while  another  standard  text  writer,  Bishop,  supports 
it.  But  we  need  not  go  into  that  question  here;  for  in  this  case 
the  offence  charged  does  not  consist  of  mere  solicitation  to 
commit  a  felony,  but  it  is  accompanied  with  acts — offering  a 
bribe  and  furnishing  the  means  with  which  the  felony  could  be 
committed ;  and  we  think  it  is  abundantly  shown  by  the  analysis 
of  the  authorities  presented  in  the  argument  of  the  counsel  for 
the  State,  that  where  the  solicitation  to  commit  the  felony  is  ac- 
companied by  such  acts  as  are  here  charged,  the  decided  weight 
of  authority  is  in  favor  of  the  view  that  the  offence  is  complete. 

This  is  in  accordance  with  reason  as  well  as  authority.  There 
can  be  no  doubt  that  a  person  may  commit  a  felony  either  by  his 
own  hand  or  by  the  hand  of  another  prompted  or  encouraged  by 
him;  and  if  he  undertakes  to  commit  a  felony  by  his  own  hand, 
and  his  purpose  is  frustrated  by  the  failure  of  the  inanimate 
agencies  which  he  employs  to  serve  his  felonious  purpose,  he 
would  unquestionably  be  guilty  of  an  attempt  to  commit  a  fel- 
ony. Upon  the  same  principle  if,  instead  of  undertaking  with  his 
own  hand  to  effect  his  felonious  purpose,  he  undertakes  to  employ 
the  agency  of  another,  furnishing  him  with  the  means  requisite 
to  effect  his  purpose,  and  offering  him  an  inducement  to  do  so, 
the  fact  that  such  agent  fails  him,  will  not  relieve  him  from 
responsibility  for  that  which  he  not  only  intended  to  have  done, 
but  which  he  took  the  necessary  steps  to  accomplish.  If  the 
failure  of  the  inanimate  agency  to  effect  the  purpose  which  he 
desired  and  intended  to  accomplish  will  not  relieve  him  from 
responsibility  for  the  felonious  act  which  he  attempted  to  perpe- 
trate by  the  use  of  such  agency,  we  do  not  see  why  the  failure 
of  his  animate  agent  to  carry  out  the  purpose  which  he  desired 
him  to  effect  and  furnished  him  with  the  means  of  effecting, 
should  relieve  him  from  like  responsibility. 

There  is,  however,  another  view  of  this  case,  which  will  equally 
support  the  conclusion  at  which  we  have  arrived.  It  will  be  ob- 
served that  the  indictment  (the  material  part  of  which  is  set  out 
above)  contains  no  formal  charge  of  the  offence  known  as  an 


180  NATURE  AND  ELEMENTS. 

attempt  to  commit  a  felony,  although  it  seems  so  to  have  been 
treated  by  the  Circuit  Judge,  and  hence  we  have  so  considered  it 
in  that  light  in  what  has  been  said  above.  On  the  contrary,  the 
offence  charged  is  the  solicitation  of  another  to  commit  a  felony, 
which  seems  to  be  treated  in  some  of  the  cases  as  a  different  of- 
fence from  that  of  an  attempt  to  commit  a  felony.  In  Stabler  v. 
Commonwealth  (95  Penn.  St.,  318;  s.  c.,  40  Am.  Rep.,  653),  the 
indictment  contained  several  counts,  of  which  only  the  first  and 
sixth,  upon  which  the  conviction  was  had,  need  be  noticed.  In 
the  first  the  defendant  was  charged  with  a  felonious  attempt  to 
administer  poison  to  one  Waring  with  intent  to  commit  the 
crime  of  murder;  and  in  the  sixth  count  he  was  charged  with 
soliciting  one  Neyer  to  administer  poison  to  said  Waring.  The 
testimony  was  that  defendant  solicited  Neyer  to  put  poison  in 
Waring's  spring,  so  that  he  and  his  family  would  be  poisoned, 
offering  him  a  reward  for  so  doing,  and  handing  him  the  poison, 
with  directions  how  to  use  it.  Neyer  declined  to  have  anything 
to  do  with  it,  and  handed  the  poison  back  to  defendant.  Upon 
this  testimony  the  court,  adopting  the  views  of  Wharton  as  indi- 
cated above,  held  that  the  conviction  on  the  first  ground  could 
not  be  sustained,  saying:  "Merely  soliciting  one  to  to  do  an  act  is 
not  an  attempt  to  do  that  act."  But  at  the  same  time  the  court 
held  that  the  conviction  on  the  sixth  count  must  be  sustained, 
saying:  "The  conduct  of  the  plaintiff  in  error  as  testified  to  by 
the  witness  undoubtedly  shows  an  offence  for  which  an  indict- 
ment will  lie  without  any  further  act  having  been  committed." 

In  a  note  to  the  case  just  cited,  the  conflicting  views  of  Whar- 
ton and  Bishop  above  alluded  to  are  stated,  and  several  cases 
are  cited  showing  that  "solicitation  to  commit  crime  has  often 
been  punished  as  solicitation."  We  are  also  in  standard  author- 
ities on  criminal  pleading  forms  of  indictments  for  solicitation  to 
commit  a  crime,  as  well  as  forms  of  indictments  for  attempts  to 
commit  felonies,  which  are  distinct  and  different.  Archbold's 
Criminal  Pleading,  1st  Am.,  from  1st  Lond.,  ed.,  pages  238, 
403;  2  Chitty  Criminal  Law,  50;  and  3  Chitty,  807.  If,  there- 
fore, the  indictment  in  this  case  be  regarded  as  an  indictment 
for  soliciting  another  to  commit  a  felony,  and  not  as  an  indict- 
ment for  an  attempt  to  commit  a  felony,  we  think  it  can  be  sus- 
tained if  its  allegations  are  established  by  the  proof.  Rex.  v. 


STATE  V.   BUBNHAM.  181 

Higgins,  2  East,  5;  People  v.  Bush,  4  Hill  (N,  Y.),  133;  State  v. 
Avery,  7  Conn.,  266;  and  other  cases  cited  in  1  Bishop  Criminal 
Law,  (7th  ed.),  Sec.  767  et  seq. 

It  seems  to  us,  therefore,  that  the  Circuit  Judge  erred  in  his 
ruling  and  in  granting  the  motion  to  quash  the  indictment. 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Cir- 
cuit Court  be  reversed,  and  that  the  case  be  remanded  to  .that 
court  for  trial. 

Com.  v.  Randolph,  146  Pa.  St.  83;  Com.  v.  Flagg,  135  Mass.  545;  Rex 
v.  Higgins,  2  East  5;  Clark  p.  115;  Bishop  I.,  Sec.  767-768;  Wharton,  Sec. 
179;  May,  19,  184;  Hawley  &  McGregor,  p.  93. 


f. 
Consent. 

Unless  want  of  consent  is  an  essential  ingredient  in  the 
crime,  consent  is  not  a  defence  to  any  act  which  is  a  felony 
or  a  breach  of  the  peace. 

STATE  v.  BUBNHAM. 

Supreme  Court  of  Vermont,  1884. 
56  Vt.  445. 

INDICTMENT  for  a  breach  of  the  peace.  Trial  by  jury,  Decem- 
ber Term,  1883,  Taft,  J.,  presiding.  Verdict,  guilty. 

The  evidence  for  the  prosecution  tended  to  show  that  the  re- 
spondent and  one  Bloxham  engaged  in  a  boxing  match;  that  it 
was  agreed  upon  three  or  four  days  in  advance;  that  notice  of  it 
was  given  among  the  people ;  that  one  of  the  parties  had  a  second 
and  that  a  referee  to  superintend  the  encounter  was  chosen ;  that 
the  Queensberry  rules  were  to  govern  the  contestants;  that  a 
crowd  of  from  twenty-five  to  one  hundred  people  were  collected 
upon  the  fair  grounds  near  the  village,  a  ring  made,  and  from 
four  to  six  rounds  were  fought,  during  which  the  respondent  and 
said  Bloxham  were  engaged  in  assaulting  and  beating  each  other; 
that  blood  flowed  from  a  wound  on  one  of  the  parties,  which  the 


182  NATURE  AMD  ELEMENTS. 

respondent's  testimony  tended  to  show  resulted  from  hitting  an 
old  wound  on  his  head ;  that  bruises  made  in  the  melee  remained 
visible  on  the  face  of  one  of  them  the  second  succeeding  day; 
that  the  thumb  of  one  of  them  was  sprained,  and  one  of  them 
knocked  down. 

The  respondent's  evidence  tended  to  show  that  he  went  down 
to  avoid  the  blows  of  his  adversary. 

The  other  facts  are  stated  in  the  opinion. 

The  opinion  of  the  court  was  delivered  by 

Ross,  J.  We  have  to  consider  this  case  as  presented  by  the 
exceptions.  It  is  true,  as  contended  by  the  respondent's  counsel, 
that  sparring  or  boxing  with  gloves  manufactured  for  that  pur- 
pose, as  conducted  and  engaged  in  ordinary  athletic  sports,  is  not 
unlawful,  nor  a  breach  of  the  peace.  It  may  be  that  such  sports, 
properly  conducted,  are  both  healthful  and  promotive  of  phy- 
sical vigor  and  development,  and  should  be  encouraged.  But 
such  pugilistic  exercise  may  be  abused  and  carried  beyond  the 
limits  of  healthful  and  lawful  exercise  and  sport.  It  may  be  so 
conducted  as  to  create  a  breach  of  the  peace.  It  may  even  de- 
generate into  a  prize  fight.  Many  of  the  circumstances  detailed 
in  the  exceptions,  the  agreement  to  engage  in  the  match,  giving 
notice,  having  seconds,  a  referee,  rules,  a  ring,  etc.,  are  not  in- 
consistent with  lawful  sport,  nor  yet  with  a  breach  of  the  peace. 
Neither  is  the  fact  that  slight  injuries  were  inflicted  upon  the 
contestants  determinative  of  the  character  of  the  engagement. 
The  court  told  the  jury  that  if  they  found  the  facts,  which  the 
evidence  tended  to  show,  proven,  they  would  be  warranted  in 
returning  a  verdict  of  guilty,  although  the  combatants  fought  by 
consent.  The  court  instructed  the  jury  what  would  constitute  a 
breach  of  the  peace  in  a  manner  satisfactory  to  the  respondent. 
He  excepted  to  the  charge  on  the  subject  of  consent.  The  court 
did  not  withdraw  from  the  jury  the  determination  of  whether 
what  the  evidence  tended  to  show,  would  constitute  a  breach  of 
the  peace.  It  left  that  whole  subject  to  the  determination  of  the 
jury,  with  proper  instructions  on  the  subject  of  what  would 
constitute  a  breach  of  the  peace.  The  only  question  reserved  was 
whether  the  consent  of  the  combatants  would  prevent  their  acts 
from  being  a  breach  of  the  peace.  Clearly,  such  consent  would 


STATE  V.   BURNHAM.  183 

not  necessarily  give  character  to  their  acts  and  prevent  their  be- 
coming a  breach  of  the  peace.  The  conduct — quarreling,  chal- 
lenging, assaulting,  tumultuous  and  offensive  carriage,  etc.,  which 
the  statute  declares  to  be  a  breach  of  the  peace — is  capable  of 
being  consented  to  by  all  the  parties  guilty  of  it.  Consent,  there- 
fore, was  not  at  all  determinative  of  whether  the  respondent  and 
Bloxham  were  guilty  of  a  breach  of  the  peace  by  their  acts  and 
conduct  on  the  occasion  complained  of.  The  court  were  correct 
in  instructing  the  jury  that  their  consent  to  engage  in  such  acts 
and  conduct  was  not  determinative  of  the  quality  of  the  same  in 
regard  to  guilt  or  innocence.  Their  acts  and  conduct  might  have 
all  the  elements  of  a  breach  of  the  peace  notwithstanding  such 
consent. 

Neither  was  the  respondent  entitled  to  have  admitted  the  of- 
fered evidence,  to  show  that  such  matches  were  common  and 
harmless  amusements,  innocent  and  proper  exercises,  practiced 
in  the  universities  and  colleges  in  this  country.  Such  evidence 
was  not  all  determinative  of,  nor  helpful  in  determining,  the 
character  and  quality  of  the  contest  between  the  respondent  and 
Bloxham,  as  conducted  by  them  on  the  occasion  complained  of. 

Nor  was  there  error  in  not  giving  the  huge  boxing  gloves  to 
the  jury  to  examine.  Probably,  if  it  had  allowed  the  jury  to 
make  such  examination,  it  would  not  have  been  error.  Whether 
it  would  or  would  not  order  such  examination  was  largely  in  the 
discretion  of  the  County  Court.  The  gloves  furnished  no  cri- 
terion by  which  to  judge  of  the  character  of  the  contest,  nor  of 
the  manner  in  which  it  was  conducted. 

The  result  is  that  no  error  is  found  in  the  action  of  the  County 
Court.  If  the  jury,  under  proper  instructions,  h^ve  given  a 
wrong  character  to  the  contest  and  conduct  of  the  respondent, 
relief  must  be  sought  in  some  other  manner  than  upon  excep- 
tions to  correct  rulings  of  the  County  Court.  The  result  is,  that 
judgment  is  rendered  that  no  error  is  found  in  the  proceedings 
of  the  County  Court,  that  the  exceptions  are  overruled,  and  judg- 
ment rendered  on  the  verdict. 

Com.  v.  Collberg,  119  Mass.  350;  Com.  v.  Parker,  9  Met.  263;  Dutcher 
v.  State,  18  Ohio  308;  Johnston  v.  Com.,  85  Pa.  St.  54;  Tucker  v.  State, 
8  Lea  633;  Connor  v.  People,  33  Pac.  159;  Clark,  p.  8;  Bishop  I.,  Sec.  258- 
263;  May  23,  208;  Wharton,  Sec.  142,  146;  Hawley  &  McGregor,  p.  41. 


184  NATURE  AND  ELEMENTS. 

NOTE.— Want  of  consent  being  an  essential  ingredient  of  the  crime, 
consent  is  a  good  defence. 

Reynolds  v.  State,  42  N.  W.  903;  Oleson  v.  State,  9  N.  W.  38;  Stata  v. 
Shields,  45  Conn.  256;  Huber  v.  State,  126  Ind.  185;  Kellogg  r.  State,  26 
Ohio  St.  15;  Haley  v.  State,  49  Ark.  147;  Ross  v.  People,  5  Hill  294;  State 
«.  Borgorf,  63  Mo.  66;  Clark,  p.  186;  Bishop  I.,  Sec.  258-259;  Hawley  & 
McGregor,  p.  40;  May  23,  241;  Wharton,  Sec.  556  et  seq. 

NOTE.— Consent  is  a  good  defence  to  acts  not  constituting  a  breach  of 
the  peace. 

Regina  v.  Bradshaw,  14  Cox  C.  C.  83;  State  v.  Beck,  1  Hill  (S.  C.)  363; 
Com.  v.  Parker,  9  Met.  (Mass.)  263;  State  v.  Cooper,  2  Zab.  52. 


g- 
Condonation. 

The  condoning  of  a  criminal   act  affords  no  defence  to 
prosecution. 

Com.  v.  Slattery,  147  Mass.  423;  State  v.  Tall,  24  S.  W.  1010;  Fluner 
v.  State,  23  S.  W.  1;  Clark,  p.  7,  276;  May,  20;  Hawley  &  McGregor,  p. 
6,  note. 


UNITED  STATES  V.  GREATHOUSE.  185 


B. 
KINDS. 

Crimes  are  classified  as  Treasons,  Felonies  and  Mis- 
demeanors. 

1.  TREASON. 

Treason  is  a  breach  of  the  allegiance  owed  by  a  subject 
to  the  Government.  In  the  United  States  it  consists  in 
levying  war  against  the  United  States,  a  State,  or  adhering 
to  their  enemies  giving  them  aid  and  comfort. 

UNITED  STATES  v.  GREATHOUSE. 

Circuit  Court  of  the  United  States,  1863. 
2  Abb.  (U.  S.  C.  C.)  364. 

THE  schooner  Chapman  was  seized  by  the  United  States  rev- 
enue officers,  while  sailing,  or  about  to  sail  from  the  port  of  San 
Francisco,  on  a  cruise  in  the  service  of  the  then  so-called  Con- 
federate States,  against  the  commerce  of  the  United  States;  and 
the  owner  of  the  vessel  and  leaders  of  the  expedition  were  in- 
dicted, under  the  act  of  Congress  of  July  17,  1862,  for  engaging 
in  and  giving  aid  and  comfort  to  the  then  existing  rebellion 
against  the  government  of  the  United  States. 

FIELD,  J.,  charged  the  jury  as  follows: — Gentlemen  of  the 
jury:  Before  proceeding  to  give  any  instructions  in  this  case,  it 
may  be  proper  to  briefly  call  attention  to  your  appropriate  and 
only  province  in  the  determination  of  the  issues  presented.  There 
prevails  a  very  general,  but  an  erroneous  opinion,  that  in  all 
criminal  cases  the  jury  are  the  judges  as  well  of  the  law  as  of  the 


186  KINDS. 

fact — that  is,  that  they  have  a  right  to  disregard  the  law  as  laid 
down  by  the  court,  and  to  follow  their  own  notions  on  the  sub- 
ject Such  is  not  the  right  of  the  jury.  They  have  the  power, 
it  is  true,  to  disregard  the  instructions  of  the  court,  and  in  case 
of  acquittal  their  decision  will  be  final — for  new  trials  are  not 
granted  in  criminal  cases  where  a  verdict  has  passed  in  favor  of 
the  defendant;  but  they  have  no  right,  legal  or  moral,  to  adopt 
their  own  views  of  the  law.  It  is  their  duty  to  take  the  law  from 
the  court  and  apply  it  to  the  facts  of  the  case.  It  is  the  province 
of  the  court,  and  of  the  court  alone,  to  determine  all  questions 
of  law  arising  in  the  progress  of  a  trial;  and  it  is  the  province  of 
the  jury  to  pass  upon  the  evidence  and  determine  all  contested 
questions  of  fact.  The  responsibility  of  deciding  correctly  as  to 
the  law,  rests  solely  with  the  court,  and  the  responsibility  of  find- 
ing correctly  the  facts,  rests  solely  with  the  jury.  The  separation 
of  the  functions  of  the  court  from  those  of  the  jury,  in  this  re- 
spect, is  essential  to  the  efficacy  and  safety  of  jury  trials.  Any 
other  doctrine  would  lead  only  to  confusion  and  uncertainty  in 
the  administration  of  justice.  "I  hold  it,"  says  Mr.  Justice  Story, 
"the  most  sacred  constitutional  right  of  every  party  accused  of 
crime,  that  the  jury  should  respond  as  to  the  facts,  and  the  court 
as  to  the  law.  *  *  *  This  is  the  right  of  every  citizen,  and 
it  is  his  only  protection." 

You  will,  therefore,  in  this  case,  gentlemen,  take  the  law  from 
the  court,  and  follow  it.  If  the  court  err,  the  responsibility  will 
not  be  shared  by  you. 

The  defendants  are  indicted  for  engaging  in  and  giving  aid 
and  comfort  to  the  existing  rebellion  against  the  government  of 
the  United  States.  The  indictment  is  framed  under  section  2  of 
the  act  of  Congress  of  July  17,  1862,  entitled  "An  act  to  sup- 
press insurrection,  to  punish  treason  and  rebellion,  to  seize  and 
confiscate  the  property  of  rebels,  and  for  other  purposes;"  and 
it  charges  the  commission  of  acts,  which,  in  the  judgment  of  the 
court,  amount  to  treason  within  the  meaning  of  the  Constitution. 
Treason  is  the  only  crime  defined  by  the  Constitution.  That  in- 
strument declares  that  "treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort."  The  clause  was  bor- 
rowed from  an  ancient  English  statute,  enacted  in  the  year  1352, 


UNITED  STATES  V.  GREATHOUSE.  187 

in  the*  reign  of  Edward  the  Third,  commonly  known  as  the  Sta- 
tute of  Treasons.  Previous  to  the  passage  of  that  statute,  there 
was  great  uncertainty  as  to  what  constituted  treason.  Numerous 
offences  were  raised  to  its  grade  by  arbitrary  constructions  of  the 
law.  The  statute  was  passed  to  remove  this  uncertainty,  and  to 
restrain  the  power  of  the  crown  to  oppress  the  subject  by  con- 
structions of  this  character.  It  comprehends  all  treason  under 
seven  distinct  branches.  The  framers  of  our  Constitution  selected 
one  of  these  branches,  and  declared  that  treason  against  the 
United  States  should  be  restricted  to  the  acts  which  it  designates. 
"Treason  against  the  United  States,"  is  the  language  adopted, 
"shall  consist  only  in  levying  war  against  them,  or  adhering  to 
their  enemies,  giving  them  aid  and  comfort."  No  other  acts  can 
be  declared  to  constitute  the  offence.  Congress  can  neither  ex- 
tend, nor  restrict,  nor  define  the  crime.  Its  power  over  the  sub- 
ject is  limited  to  prescribing  the  punishment. 

At  the  time  the  Constitution  was  framed,  the  language  in- 
corporated into  it  from  the  English  statute  had  received  judicial 
•construction,  and  acquired  a  definite  meaning;  and  that  meaning 
has  been  generally  adopted  by  the  courts  of  the  United  States. 
Thus,  Chief  Justice  Marshall,  in  commenting  upon  the  term 
"levying  war,"  says :  "It  is  a  technical  term.  It  is  used  in  a  very 
old  statute  of  that  country  whose  language  is  our  language,  and 
whose  laws  form  the  substratum  of  our  laws.  It  is  scarcely  con- 
ceivable that  the  term  was  not  employed  by  the  framers  of  our 
Constitution  in  the  sense  which  had  been  affixed  to  it  by  those 
from  whom  we  borrowed  it.  So  far  as  the  meaning  of  any  terms, 
particularly  terms  of  art,  is  completely  ascertained,  those  by 
whom  they  are  employed  must  be  considered  as  employing  them 
in  that  ascertained  meaning,  unless  the  contrary  be  proved  by  the 
context.  It  is,  therefore,  reasonable  to  suppose,  unless  it  be  in- 
compatible with  other  expressions  of  the  Constitution,  that  the 
term  'levying  war'  is  used  in  that  instrument  in  the  same  sense 
in  which  it  was  understood  in  England  and  in  this  country  to 
have  been  used  in  the  statute  of  the  25th  of  Edward  III.,  from 
which  it  is  borrowed." 

The  constitutional  provision,  as  you  perceive,  is  divided  into 
two  clauses — 'levying  war  against  the  United  States,"  and  "ad- 
hering to  their  enemies,  giving  them  aid  and  comfort."  The 


188  KINDS. 

• 

term  "enemies,"  as  used  in  the  second  clause,  according  to  its 
settled  meaning  at  the  time  the  Constitution  was  adopted,  ap- 
plies only  to  the  subjects  of  a  foreign  power  in  a  state  of  open 
hostility  with  us.  It  does  not  embrace  rebels  in  insurrection 
against  their  own  government.  An  enemy  is  always  the  subject 
of  a  foreign  power  who  owes  no  allegiance  to  our  government  or 
country.  We  may,  therefore,  omit  all  consideration  of  this  sec- 
ond clause  in  the  constitutional  definition  of  treason.  To  convict 
the  defendants,  they  must  be  brought  within  the  first  clause  of 
the  definition.  They  must  be  shown  to  have  committed  acts 
which  amount  to  a  levying  of  war  against  the  United  States.  To 
constitute  a  levying  of  war,  there  must  be  an  assemblage  of  per- 
sons in  force,  to  overthrow  the  government,  or  to  coerce  its  con- 
duct. The  words  embrace  not  only  those  acts  by  which  war  is 
brought  into  existence,  but  also  those  acts  by  which  war  is  pros- 
ecuted. They  levy  war  who  create  or  carry  on  war.  The  offence 
is  complete,  whether  the  force  be  directed  to  the  entire  overthrow 
of  the  government  throughout  the  country,  or  only  in  certain 
portions  of  the  country,  or  to  defeat  the  execution  and  compel 
the  repeal  of  one  of  its  public  laws. 

It  is  not,  however,  necessary  that  I  should  go  into  any  close 
definition  of  the  words  "levying  war,"  for  it  is  not  sought  to  apply 
them  to  any  doubtful  case.  War  has  been  levied  against  the 
United  States.  War  of  gigantic  proportions  is  now  waged 
against  them,  and  the  government  is  struggling  with  it  for  its 
life.  War  being -levied,  all  who  aid  in  its  prosecution,  whether 
by  open  hostilities  in  the  field,  or  by  performing  any  part  in  the 
furtherance  of  the  common  object,  "however  minute  or  however 
remote  from  the  scene  of  action,"  are  equally  guilty  of  treason 
within  the  constitutional  provision.  In  treason  there  are  no  ac- 
cessories; all  who  engage  in  the  rebellion,  at  any  stage  of  its  ex- 
istence, or  who  designedly  give  to  it  any  species  of  aid  and  com- 
fort, in  whatever  part  of  the  country  they  may  be,  stand  on  the 
same  footing — they  are  all  principals  in  the  commission  of  the 
crime;  they  are  all  levying  war  against  the  United  States. 

In  Exp.  Bollman,  4  Cranch,  127,  Mr.  Chief  Justice  Marshall, 
in  delivering  the  opinion  of  the  Supreme  Court,  said:  "It  is  not 
the  intention  of  the  court  to  say  that  no  individual  can  be  guilty 
of  this  crime  who  has  not  appeared  in  arms  against  his  country. 


UNITED  STATES  V.  GREATHOUSE.  189 

On  the  contrary,  if  war  be  actually  levied,  that  is,  if  a  body  of 
men  be  actually  assembled  for  the  purpose  of  effecting  by  force 
a  treasonable  purpose,  all  those  who  perform  any  part,  however 
minute,  or  however  remote  from  the  scene  of  action,  and  who  are 
.actually  leagued  in  the  general  conspiracy,  are  to  be  considered 
as  traitors."  And  in  commenting  upon  this  language  on  the  trial 
of  Burr,  the  same  distinguished  judge  said:  "According  to  the 
opinion,  it  is  not  enough  to  be  leagued  in  the  conspiracy,  and  that 
war  be  levied,  but  it  is  also  necessary  to  perform  a  part :  that  part 
is  the  act  of  levying  war.  That  part,  it  is  true,  may  be  minute; 
it  may  not  be  the  actual  appearance  in  arms,  and  it  may  be  re- 
mote from  the  scene  of  action,  that  is,  from  the  place  where  the 
army  is  assembled;  but  it  must  be  a  part,  and  that  part  must  be 
performed  by  a  person  who  is  leagued  in  the  conspiracy.  This 
part,  however  minute  or  remote,  constitutes  the  overt  act  of  which 
alone  the  person  who  performs  it  can  be  convicted."  2  Burr's 
Trial,  438-9. 

The  indictment  in  the  present  case,  as  I  have  already  stated, 
is  founded  upon  section  2  of  the  act  of  July  17,  1862.  The  Con- 
stitution, although  defining  treason,  leaves  to  Congress  the  au- 
thority to  prescribe  its  punishment.  In  1790,  Congress  passed 
an  act  affixing  to  the  offence  the  penalty  of  death.  By  section  1 
of  the  act  of  July,  1862,  Congress  gave  a  discretionary  power  to 
the  courts  to  inflict  the  penalty  of  death,  or  fine  and  imprison- 
ment, providing  that  in  either  case  the  slaves  of  the  party  con- 
victed, if  any  he  have,  shall  be  liberated.  Section  2  of  the  act 
declares,  "that  if  any  person  shall  hereafter  incite,  set  on  foot, 
assist,  or  engage  in  any  rebellion  or  insurrection  against  the  au- 
thority of  the  United  States,  or  the  laws  thereof,  or  shall  give 
aid  or  comfort  thereto,  or  shall  engage  in,  or  give  aid  and  comfort 
to  any  such  existing  rebellion  or  insurrection,  and  be  convicted 
thereof,  such  person  shall  be  punished  by  imprisonment  for  a 
period  not  exceeding  ten  years,  or  by  a  fine  not  exceeding  ten 
thousand  dollars,  and  by  the  liberation  of  all  his  slaves,  if  any  he 
have,  or  by  both  said  punishments,  at  the  discretion  of  the 
court." 

Section  4  provides  that  the  act  shall  not  be  construed  in  any 
way  to  affect  or  alter  the  prosecution,  conviction,  or  punishment 
of  any  person  guilty  of  treason  before  its  passage,  unless  con- 
victed under  the  act. 


190  KINDS. 

There  would  seem  upon  a  first  examination  to  be  an  incon- 
sistency between  sections  1  and  2  of  this  act — section  1  declaring 
a  particular  punishment  for  treason,  and  section  2  declaring,  for 
acts  which  may  constitute  treason,  a  different  punishment.  It 
appears  from  the  debate  in  the  Senate  of  the  United  States,  when 
section  2  was  under  consideration,  that  it  was  the  opinion  of  sev- 
eral senators  that  the  commission  of  the  acts  which  it  designates 
might,  under  some  circumstances,  constitute  an  offence  less  than 
treason.  The  Constitution,  as  you  have  seen,  declares  that  "trea- 
son against  the  United  States  shall  consist  only  in  levying  war, 
or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort." 
Rebels  not  being  enemies  within  its  meaning,  an  indictment  alleg- 
ing the  giving  of  aid  and  comfort  to  them  had  been,  as  was 
stated,  held  defective.  But  if  such  ruling  had  been  made,  it  was 
made,  we  may  presume,  not  because  the  giving  of  aid  and  com- 
fort to  rebels  was  not  treason,  but  because  the  parties  giving  such 
aid  and  comfort  were  equally  involved  in  guilt  with  those  in  open 
hostilities,  and  should  have  been  indicted  for  levying  war;  for 
every  species  of  aid  and  comfort,  which,  if  given  to  a  foreign 
enemy,  would  constitute  treason  within  the  second  clause  of  the 
constitutional  provision — adhering  to  the  enemies  of  the 
United  States — would,  if  given  to  the  rebels  in  insur- 
rection against  the  government,  constitute  a  levying  of  war  under 
the  first  clause.  Section  2  of  the  act,  however,  relieves  the  sub- 
ject from  any  difficulty,  so  far  as  the  form  of  the  indictment  is 
concerned.  It  is  not  necessary  now  to  use  specifically  the  term 
"levying  war;"  it  will  be  sufficient  if  the  indictment  follows  the 
language  of  the  act,  as  the  indictment  does  in  the  present  case. 
But  we  are  unable  to  conceive  of  any  act  designated  in  section 
2  which  would  not  constitute  treason,  except,  perhaps,  as  sug- 
gested by  my  associate,  that  of  inciting  to  a  rebellion.  If  we  lay 
aside  the  discussion  in  the  Senate,  and  read  the  several  sections 
of  the  act  together,  the  apparent  inconsistency  disappears.  Look- 
ing at  the  act  alone,  we  conclude  that  Congress  intended: — 1st, 
to  preserve  the  act  of  1790,  which  prescribes  the  penalty  of 
death,  in  force  for  the  prosecution  and  punishment  of  offences 
committed  previous  to  July  17,  1862,  unless  the  parties  accused 
are  convicted  under  the  act  of  the  latter  date  for  subsequent  of- 
fences; 2nd,  to  punish  treason  thereafter  committed  with  death, 


UNITED  STATES  V.  GREATHOUSE.  191 

or  fine  and  imprisonment,  in  the  discretion  of  the  court,  unless 
the  treason  consist  in  engaging  in  or  assisting  a  rebellion  or  insur- 
rection against  the  authority  of  the  United  States  or  the  laws 
thereof,  in  which  event  the  death  penalty  is  to  be  abandoned, 
and  a  less  penalty  inflicted.  By  this  construction  the  apparent  in- 
consistency in  the  provisions  of  the  different  sections  is  avoided, 
and  effect  given  to  each  clause  of  the  act.  The  defendants  are 
therefore  in  fact  on  trial  for  treason,  and  they  have  had  all  the 
protection  and  privileges  allowed  to  parties  accused  of  treason, 
without  being  liable,  in  case  of  conviction,  to  the  penalty  which 
all  other  civilized  nations  have  awarded  to  this,  the  highest  of 
crimes  known  to  the  law. 

The  indictment  charges,  that  on  March  16,  1863,  and  long 
before  and  since,  an  open  and  public  rebellion  by  certain  citizens 
of  the  United  States,  under  a  pretended  government,  called  the 
Confederate  States  of  America,  has  existed  against  the  United 
States  and  their  authority  and  laws;  that  the  defendants,  in  dis- 
regard of  their  allegiance  to  the  United  States,  did  on  that  day 
and  divers  other  times  before  and  since,  at  the  city  of  San  Fran- 
cisco, "maliciously  and  traitorously"  engage  in,  and  give  aid  and 
comfort  to,  the  said  rebellion  \  that  in  the  prosecution  and  execu- 
tion of  their  "treasonable  and  traitorous"  purposes,  they  pro- 
cured, prepared,  fitted  out,  and  armed  a  schooner,  called  the  J. 
M.  Chapman,  then  lying  within  the  port  of  San  Francisco,  with 
intent  that  the  same  should  be  employed  in  the  service  of  the 
rebellion  to  cruise  on  the  high  seas,  and  commit  hostilities  upon 
the  citizens,  property,  and  vessels  of  the  United  States ;  and  that 
they  entered  upon  the  said  schooner  and  sailed  from  the  port  of 
San  Francisco  upon  such  cruise,  in  the  service  of  said  rebellion. 
In  other  words,  the  indictment  alleges:  1st,  the  existence  of  a 
rebellion  against  the  United  States,  their  authority  and  laws; 
2nd,  that  the  defendants  traitorously  engaged  in  and  gave  aid 
and  comfort  to  the  same;  3rd,  that  in  execution  of  their  treason- 
able and  traitorous  purposes,  they  procured,  fitted  out,  and  armed 
a  vessel  to  cruise  in  the  service  of  the  rebellion  upon  the  high 
seas,  and  commit  hostilities  against  the  citizens,  property,  and 
vessels  of  the  United  States;  and,  4th,  that  they  sailed  in  their 
vessel  from  the  port  of  San  Francisco,  upon  such  cruise,  in  the 
service  of  the  rebellion. 


192  KINDS. 

The  existence  of  the  rebellion  is  a  matter  of  public  notoriety, 
and,  like  matters  of  general  and  public  concern  to  the  whole 
country,  may  be  taken  notice  of  by  judges  and  juries  without 
that  particular  proof  which  is  required  of  the  other  matters 
charged.  The  public  notoriety,  the  proclamations  of  the  presi- 
dent, and  the  acts  of  Congress,  are  sufficient  proof  of  the  allega- 
tion of  the  indictment  in  this  respect.  The  same  notoriety  and 
public  documents  are  also  sufficient  proof  that  the  rebellion  is 
organized  and  carried  on  under  a  pretended  government,  called 
the  Confederate  States  of  America. 

As  to  the  treasonable  purposes  of  the  defendants,  there  is  no 
conflict  in  the  evidence.  It  is  true,  the  principal  witnesses  of  the 
government  are,  according  to  their  own  statement,  co-conspira- 
tors with  the  defendants  and  equally  involved  in  guilt  with  them, 
if  guilt  there  be  in  any  of  them.  But  their  testimony,  as  you  have 
seen,  has  been  corroborated  in  many  of  its  essential  details.  You 
are,  however,  the  exclusive  judges  of  its  credibility.  The  court 
will  only  say  to  you  that  there  is  no  rule  of  law  which  excludes 
the  testimony  of  an  accomplice,  or  prevents  you  from  giving  cre- 
dence to  it,  when  it  has  been  corroborated  in  material  particu- 
lars. Indeed,  gentlemen,  the  court  has  not  been  able  to  perceive 
from  the  argument  of  counsel  that  the  truth  of  the  material  por- 
tions of  their  testimony  has  been  seriously  controverted. 

It  is  not  necessary  that  I  should  state  in  detail  the  evidence 
produced.  I  do  not  propose  to  do  so.  It  is  sufficient  to  refer  to  its 
general  purport.  It  is  not  denied,  and  it  will  not  be  denied,  that 
the  evidence  tends  to  establish  that  Harpending  obtained  from 
the  president  of  the  so-called  Confederate  States  a  letter  of 
marque — a  commission  to  cruise  in  their  service  on  the  high  seas, 
in  a  private  armed  vessel,  and  commit  hostilities  against  the  citi- 
zens, vessels,  and  property  of  the  United  States;  that  his  co-de- 
fendants and  others  entered  into  a  conspiracy  with  him  to  pur- 
chase and  fit  out  and  arm  a  vessel,  and  cruise  under  the  said  let- 
ter of  marque,  in  the  service  of  the  rebellion;  that  in  pursuance 
of  the  conspiracy  they  purchased  the  schooner  J.  M.  Chapman; 
that  they  purchased  cannon,  shells,  and  ammunition,  and  the 
means  usually  required  in  enterprises  of  that  kind,  and  placed 
them  on  board  the  vessel;  that  they  employed  men  for  the  man- 
agement of  the  vessel;  and  that,  when  everything  was  in  readi- 


UNITED  STATES  V.  GBEATHOU8E.  193 

ness,  they  started  with  the  vessel  from  the  wharf,  with  the 
intention  to  sail  from  the  port  of  San  Francisco  on  the  arrival  on 
board  of  the  captain,  who  was  momentarily  expected.  Gentle- 
men, I  do  not  propose  to  say  anything  to  you  upon  the  much 
disputed  questions,  whether  or  not  the  vessel  ever  did,  in  fact, 
sail  from  the  port  of  San  Francisco,  or  whether,  if  she  did  sail, 
she  started  on  the  hostile  expedition.  In  the  judgment  of  the 
court  they  are  immaterial,  if  you  find  the  facts  to  be  what  I  have 
said  the  evidence  tends  to  establish. 

When  Harpending  received  the  letter  of  marque,  with  the  inten- 
tion of  using  it,  if  such  be  the  case  (and  it  is  stated  by  one  of  the 
witnesses  that  he  represented  that  he  went  on  horseback  over  the 
plains  expressly  to  obtain  it),  he  became  leagued  with  the  in- 
surgents— the  conspiracy  between  him  and  the  chiefs  of  the  re- 
bellion was  complete;  it  was  a  conspiracy  to  commit  hostilities 
on  the  high  seas  against  the  United  States,  their  authority  and 
laws.  If  the  other  defendants  united  with  him  to  carry  out  the 
hostile  expedition,  they  too,  became  leagued  with  him  and  the 
insurgent  chiefs  in  Virginia,  in  the  general  conspiracy.  The 
subsequent  purchasing  of  the  vessel  and  the  guns  and  the  am- 
munition, and  the  employment  of  the  men  to  manage  the  vessel, 
if  these  acts  were  done  in  furtherance  of  the  common  design, 
were  overt  acts  of  treason.  Together,  these  acts  complete  the  essen- 
tial charge  of  the  indictment.  In  doing  them,  the  defendants 
were  performing  a  part  in  aid  of  the  great  rebellion.  They  were 
giving  it  aid  and  comfort. 

It  is  not  essential,  to  constitute  the  giving  of  aid  and  comfort, 
that  the  enterprise  commenced  should  be  successful,  and  actually 
render  assistance.  If,  for  example,  a  vessel  fully  equipped  and 
armed  in  the  service  of  the  rebellion  should  fail  in  its  attack  upon 
one  of  our  vessels,  and  be  itself  captured,  no  assistance  would,  in 
truth,  be  rendered  to  the  rebellion;  but  yet,  in  judgment  of  law — 
in  legal  intent — the  aid  and  comfort  would  be  given.  So  if  a  let- 
ter containing  important  intelligence  for  the  insurgents,  be  for- 
warded, the  aid  and  comfort  are  given,  though  the  letter  be 
intercepted  on  its  way.  Thus,  Foster,  in  his  Treatise  on  Crown 
Law,  says :  "And  the  bare  sending  money  or  provisions,  or  send- 
ing intelligence  to  rebels  or  enemies,  which  in  most  cases  is  the 
most  effectual  aid  that  can  be  given  them,  will  make  a  man  a 
13 


194  KINDS. 

traitor,  though  the  money  or  intelligence  should  happen  to  be 
intercepted;  for  the  party  in  sending  it  did  all  he  could;  the  trea- 
son was  complete  on  his  part,  though  it  had  not  the  effect  he  in- 
tended." 

Wherever  overt  acts  have  been  committed  which,  in  their 
natural  consequence,  if  successful,  would  encourage  and  advance 
the  interests  of  the  rebellion,  in  judgment  of  law,  aid  and  com- 
fort are  given.  Whether  aid  and  comfort  are  given — the  overt 
acts  of  treason  being  established — is  not  left  to  the  balancing  of 
probabilities;  it  is  a  conclusion  of  law. 

If  the  defendants  obtained  a  letter  of  marque  from  the  presi- 
dent of  the  so-called  Confederate  States,  the  fact  does  not 
exempt  them  from  prosecution  in  the  tribunals  of  the  country 
for  the  acts  charged  in  the  indictment.  The  existence  of  civil 
war,  and  the  application  of  the  rules  of  war  to  particular  cases, 
under  special  circumstances,  do  not  imply  the  renunciation  or 
waiver  by  the  Federal  government  of  any  of  its  rights  as 
sovereign  toward  the  citizens  of  the  seceded  States. 

As  matter  of  policy  and  humanity,  the  government  of  the 
United  States  has  treated  the  citizens  of  the  so-called  Confederate 
States  taken  in  open  hostilities  as  prisoners  of  war,  and  has  thus 
exempted  them  from  trial  for  violation  of  its  municipal  laws. 
But  the  courts  have  no  such  dispensing  power;  they  can  only  en- 
force the  laws  as  they  find  them  upon  the  statute  book.  They 
cannot  treat  any  new  government  as  having  authority  to  issue 
commissions  or  letters  of  marque  which  will  afford  protection  to 
its  citizens,  until  the  legislative  and  executive  departments  have 
recognized  its  existence.  The  judiciary  follows  the  political  de- 
partment of  the  government  in  these  particulars.  By  that  depart- 
ment, the  rules  of  war  have  been  applied  only  in  special  cases; 
and  notwithstanding  the  application,  Congress  has  legislated,  in 
numerous  instances,  for  the  punishment  of  all  parties  engaged  in, 
or  rendering  assistance  in  any  way  to  the  existing  rebellion.  The 
law  under  which  the  defendants  are  indicted,  was  passed  after 
captives  in  war  had  been  treated  and  exchanged  as  prisoners  of 
war,  in  numerous  instances. 

But  even  if  full  belligerent  rights  had  been  conceded  to  the 
Confederate  States,  such  rights  could  not  be  invoked  for  the  pro- 
tection of  persons  entering  within  the  limits  of  States  which  have 


UNITED  STATES  V.  GREATHOU8E.  195 

never  seceded,  and  secretly  getting  up  hostile  expeditions  against 
our  government  and  its  authority  and  laws.  The  local  and  tem- 
porary allegiance,  which  every  one — citizen  or  alien — owes  to 
the  government  under  which  he  at  the  time  lives,  is  sufficient  to 
subject  him  to  the  penalties  of  treason. 

These,  gentlemen,  constitute  all  the  instructions  I  have  to 
give.  My  associate,  Judge  Hoffman,  will  submit  some  further 
observations  to  you.  The  case  is  one  of  much  interest — not  be- 
cause it  is  the  only  case  for  treason  tried  in  the  State, 
but  because  of  the  great  importance  of  the  principles  involved. 
As  you  will  weigh  carefully  the  evidence,  and  be  guided  by  the 
instructions  of  the  court,  you  will  have  no  difficulty  in  reaching 
an  intelligent  and  just  verdict. 

HOFFMAN,  J.,  then  gave  additional  instructions  to  the  jury, 
substantially  consistent  with  those  above  stated. 
The  jury  found  a  verdict  of  guilty. 

U.  S.  v,  Hoxie,  1  Paine  265;  U.  S.  v.  McCarty,  2  Dall.  86;  U.  S.  c. 
Mitchell,  2  Dall.  348;  Respublica  v.  Roberts,  1  Dall.  39;  U.  S.  v.  Han- 
way,  2  Wall.  Jr.  139;  Const.  U.  S.,  Art.  3,  Sec.  3,  CL  1;  Minn.  Stat.  1894, 
Sec.  6318;  N.  Y.  Penal  Code,  Sec.  37-40;  Clark,  p.  32,  351;  Bishop  I.,  Sec. 
611-613;  Hawley  &  McGregor,  p.  115;  May,  Sec.  124;  Wharton,  Sec.  1782 
et  seq.;  The  Penal  Code  of  Pa.;  Shields,  vol.  I.,  183  to  186;  voL  II.,  640, 
663,  669. 

NOTE.— Petit  treason,  an  offence  unknown  to-day,  was  at  common  law 
the  killing  of  a  superior  by  an  inferior. 

Bishop  Cr.  Law,  Sec.  611;  Bilansky  v.  State,  3  Minn.  427;  N.  Y.  Penal 
Code,  Sec.  182;  Clark,  p.  32;  May,  Sec.  134;  Bishop  I.,  Sec.  611;  Hawley 
&  McGregor,  p.  115. 


196  KINDS. 


2.  FELONY. 

By  the  common  law  a  felony  was  a  crime,  the  punish- 
ment for  which  was  forfeiture  of  the  estate,  and  in  some 
cases  death.  By  the  statutory  law  it  is  any  crime  the 
punishment  for  which  may  be  death  or  imprisonment  in 
the  state's  prison. 

BENTON  v.  COMMONWEALTH. 

Supreme  Court  of  Appeals  of  Virginia,  1893. 
89  Va.  570;  16  S.  E.  725. 

LEWIS,  P.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  D.  W.  Benton,  was  jointly  indicted  with 
Herbert  Wilson  and  John  Benton  for  house-breaking.  The  in- 
dictment charges  a  breaking  and  entering,  in  the  night-time,  with 
intent  to  commit  larceny,  and  the  actual  larceny  of  a  quantity  of 
meat,  of  the  value  of  fifty  dollars. 

Upon  this  indictment  Wilson  was  separately  tried  and  con- 
victed, the  verdict  being  in  these  words:  "We,  the  jury,  find  the 
prisoner,  Herbert  Wilson,  guilty  as  indicted,  and  fix  the  penalty 
at  twelve  months  in  the  county  jail,  and  a  fine  of  five  dollars;" 
and  there  was  judgment  accordingly.  By  section  3706  of  the 
Code  the  offence  charged  in  this  indictment  is  punishable  by  im- 
prisonment in  the  penitentiary  not  less  than  two  nor  more  than 
ten  years,  or,  in  the  discretion  of  the  jury,  by  imprisonment  in 
jail  not  exceeding  twelve  months  and  a  fine  not  exceeding  five 
hundred  dollars. 

On  the  trial  of  the  present  case,  after  the  conviction  of  Wil- 
son, the  commonwealth  offered  the  latter  as  a  witness  to  prove 
that  the  plaintiff  in  error  and  the  witness  were  of  a  party  of  four 
persons  who  committed  the  offence  mentioned  in  the  indictment. 
The  prisoner  objected  to  the  competency  of  the  witness,  on  the 
ground  that  he  had  been  convicted  of  a  felony,  for  which  he  had 
not  been  pardoned  or  punished.  But  the  objection  was  over- 


BENTON  V.  COMMONWEALTH.  197 

ruled,  and  the  witness  was  allowed  to  testify;,  to  which  ruling  the 
prisoner  excepted. 

The  statute  provides  that,  "except  where  it  is  otherwise  ex- 
pressly provided,  a  person  convicted  of  felony  shall  not  be  a 
witness,  unless  he  has  been  pardoned  or  punished  therefor." 
Code,  Sec.  3898. 

It  is  conceded  that  at  the  time  of  the  trial  the  witness,  "Wilson, 
had  not  been  pardoned  or  punished  for  the  offence  of  which  he 
had  been  convicted;  and  the  question  is,  Was  that  offence  a  fel- 
ony, although  the  punishment  ascertained  by  the  jury  was  only 
imprisonment  in  jail  and  a  fine  of  five  dollars?  We  are  of  opinion 
that  it  was. 

In  Virginia  offences  are  either  felonies  or  misdemeanors. 
"Such  offences  as  are  punishable  with  death  or  confinement  in 
the  penitentiary  are  felonies;  all  other  offences  are  misde^ 
meanors."  Code,  Sec.  3879.  The  question  in  the  present  case, 
therefore,  depends  upon  the  meaning  and  effect  of  the  word 
"punishable"  in  this  section. 

The  crime  of  house-breaking,  with  intent  to  commit  larceny^ 
is  a  felony;  and  it  is  equally  certain  that  it  would  have  been 
competent  for  the  jury,  under  the  indictment  in  the  present  case, 
to  have  found  the  accused,  Wilson,  guilty  of  larceny.  But  they 
have  not  done  so.  The  verdict  rendered  was  a  general  verdici 
of  "guilty  as  indicted,"  and  this,  according  to  Vaughan's  Case, 
17  Gratt.  576,  was  a  conviction,  not  of  larceny,  but  of  house- 
breaking  with  intent  to  steal;  so  that  there  is  no  room  for  the 
argument  of  the  attorney-general  that  the  verdict  must  be  con- 
strued as  a  conviction  for  a  misdemeanor,  under  section  4040  of 
the  Code,  which  provides  that  "if  a  person  indicted  of  felony  be 
by  the  jury  acquitted  of  part  and  convicted  of  part  of  the  of- 
fence charged,  he  shall  be  sentenced  for  such  part  as  he  is  so  con- 
victed of,  if  the  same  be  substantially  charged  in  the  indictment, 
whether  it  be  felony  or  misdemeanor." 

The  word  "punishable"  in  section  3879  evidently  refers  to  of- 
fences which  may  be  punished  by  confinement  in  the  peniten- 
tiary, and  not  to  those  only  which  must  be  so  punished.  The 
legislature  never  intended  to  leave  the  grade  of  any  offence  to 
the  discretion  of  a  jury,  and  we  need  only  look  to  section  3903 
of  the  Code  to  find  that  there  are  felonies  which  may  be  pun- 


198  KINDS. 

ished  in  a  milder  manner  than  by  confinement  in  the  peni- 
tentiary ;  for  by  that  section  it  is  provided  that  "the  term  of  con- 
finement in  the  penitentiary,  or  in  jail,  of  a  person  convicted  of 
felony,  if  that  punishment  is  prescribed,  and  the  amount  of  the 
fine,  if  the  felony  be  also  punishable  by  fine,  shall  be  ascertained 
by  the  jury,  so  far  as  the  term  of  confinement  and  the  amount  of 
the  fine  are  not  fixed  by  law." 

As  long  ago  as  Barker's  Case,  2  Va.  Gas.  122,  it  was  decided 
that  every  offence  punishable  by  confinement  in  the  penitentiary 
is  a  felony,  unless  it  be  by  statute  denominated  a  misdemeanor; 
and  there  are  numerous  decisions  outside  of  Virginia  to  the  same 
effect. 

House-breaking  with  intent  to  commit  larceny,  then,  is  a  fel- 
ony, and  its  nature  is  not  affected  when,  in  a  particular  case,  the 
jury,  in  the  exercise  of  a  discretion,  fix  a  lighter  punishment  than 
confinement  in  the  penitentiary.  It  is  a  crime,  in  the  estimation 
of  the  legislature,  of  a  deeper  dye  than  ordinary  misdemeanors, 
and  is  nowhere  declared  by  statute  to  be  a  misdemeanor  under 
any  circumstances. 

Upon  this  subject  a  philosophical  writer,  after  observing  that 
in  a  considerable  number  of  the  States  of  the  Union,  there  are 
statutes  defining  felony  to  be  an  offence  punishable  either  by 
death  or  by  imprisonment  in  the  State  prison,  says  further:  "If, 
by  the  terms  of  the  statute,  the  court  or  jury  is  at  liberty  to  in- 
flict some  milder  punishment,  instead  of  imprisonment  or  death, 
this  discretion  does  not  prevent  the  offence  from  being  felony. 
That  the  heavier  punishment  may  be  imposed  is  sufficient."  1 
Bish.  Grim.  Law  (7th  ed.),  Sec.  619. 

One  of  the  earliest  cases  on  the  subject  is  Johnston  v.  State,  7 
Mo.  183.  In  that  case  the  defendant  was  indicted  for  a  felonious 
assault.  The  jury  found  him  guilty,  and  assessed  as  his  punish- 
ment a  fine  and  imprisonment  in  jail.  The  error  assigned  was 
that  the  indictment  was  for  a  felony,  and  the  judgment  for  a  mis- 
demeanor. But  the  court  said :  "This  is  a  mistake,  originating  in 
a  misunderstanding  of  the  definition  of  the  word  'felony'  by  our 
statute.  A  felony  under  our  act  is  an  offence  for  which  the  party 
may  be  imprisoned  in  the  penitentiary.  The  legislature  have 
wisely  left  it  to  the  discretion  of  the  jury,  in  many  offences,  to  in- 
flict the  punishment  of  imprisonment  in  the  penitentiary,  or  fine 


BENTON  V.  COMMONWEALTH.  199 

and  imprisonment  in  a  county  jail;  and  the  offence  charged  in 
this  indictment  is  one  of  them.  Though  this  discretion  is  given 
to  the  juries,  they  are  still  felonies." 

To  the  same  effect  is  State  v.  Smith,  32  Me.  369,  in  which  case 
it  was  contended,  under  a  statute  similiar  to  ours,  that  an  offence, 
to  be  a  felony,  must  be  punishable  in  the  State  prison;  but  the 
court  held  that  any  offence  was  a  felony  which  was  liable  to  be  so 
punished,  although  it  might  also  be  punished  by  fine  or  imprison- 
ment in  jail.  And  this  ruling  was  reaffirmed  in  State  v.  May- 
berry,  48  Me.  218,  236. 

In  a  recent  case  in  Arkansas  the  defendant  was  indicted  for 
slander,  which,  under  a  statute  of  that  State,  is  punishable  by  im- 
prisonment in  the  penitentiary,  or,  in  the  discretion  of  the  court, 
by  fine.  Another  statute  of  the  same  State  classifies  and  defines 
offences  as  ours  does;  and  it  was  held  that  slander,  in  that  State, 
was  a  felony,  because  it  might  be  punished  by  imprisonment  in 
the  penitentiary,  and  that  the  discretion  vested  in  the  court  to 
mitigate  the  punishment  did  not  alter  the  nature  of  the  crime. 
"The  same  acts,"  said  the  court,  "cannot  at  the  same  time  con- 
stitute a  felony  and  a  misdemeanor.  They  cannot  co-exist  as  the 
result  of  one  and  the  same  transaction.  The  crime  must  be  one 
or  the  other,  not  both,  or  either."  State  v.  Waller,  43  Ark.  381. 

Another  case  in  point  is  People  v.  War,  20  Cal.  117.  In  that 
case  it  was  held  that  although  the  offence  charged  in  the  indict- 
ment might,  in  the  discretion  of  the  court,  be  punished  by  fine 
only,  yet,  inasmuch  as  it  was  also  punishable — which  meant,  it 
was  said,  liable  to  be  punished — by  imprisonment  in  the  State 
prison,  it  was  a  felony,  under  a  statute  of  California  declaring 
all  offences  "punishable  by  death  or  imprisonment  in  a  State 
prison"  to  be  felonies. 

The  same  principle  was  recognized  in  Canada's  Case,  22  Gratt. 
899,  which  was  an  indictment  for  a  felonious  and  malicious  as- 
sault, with  intent  to  maim,  disfigure,  disable,  and  kill.  In  deliv- 
ering the  opinion  of  the  court,  Moncure,  P.,  said  it  was  compe- 
tent for  the  jury  to  acquit  the  accused  of  maliciously  doing  the 
act  charged  against  him,  and  to  convict  him  of  unlawfully  doing 
it;  and  that  both  of  these  offences  were  felonies,  although  the  lat- 
ter is  punishable  by  confinement  in  the  penitentiary,  or,  in  the 
discretion  of  the  jury,  by  confinement  in  jail  and  a  fine.  The 


200  KINDS. 

idea  evidently  was  that  the  grade  of  the  offence  is  fixed  by  the 
statute,  and  is  not  dependent  upon  the  character  of  the  punish- 
ment which  may  happen  to  be  imposed  in  any  particular  case. 
It  was  also  held  that  it  was  competent  for  the  jury  to  convict  the 
accused,  as  they  did,  of  a  simple  assault  and  battery,  because  that 
offence  was  substantially  charged  in  the  indictment. 

In  a  recent  and  valuable  work,  in  which  many  of  the  cases  on 
the  point  are  cited,  it  is  laid  down  that  a  felony  in  this  country 
is  a  crime  punishable  with  death  or  imprisonment  in  the  State 
prison,  or  for  the  commission  of  which  the  perpetrator  may  be  so 
punished;  and  that  a  discretion  to  assess  a  lighter  punishment 
does  not  reduce  the  grade  of  the  crime.  4  Am.  &  Eng.  Ency.  of 
Law,  p.  651. 

It  is  clear,  therefore,  that  Wilson  was  an  incompetent  witness 
in  the  present  case,  and  that  the  trial  court  erred  in  admitting 
him  to  testify.  And  the  same  remark  applies  to  the  witness, 
Barton,  mentioned  in  the  bill  of  exceptions. 

The  case  must,  therefore,  be  sent  back  for  a  new  trial. 

Judgment  reversed. 

People  v.  Hughes,  137  N.  Y.  29;  People  v.  Lyon,  99  N.  Y.  210;  People 
v.  Park,  41  N.  Y.  21;  People  v.  War,  20  Cal.  117;  Ingram  v.  State,  7  Mo. 
293;  Johnston  v.  State,  7  Mo.  183;  People  v.  Van  Steenburg,  1  Park  Cr. 
39;  Weinjorpflin  v.  State,  7  Blackf.  186;  Fassett  v.  Smith,  23  N.  Y.  252; 
Minn.  Stat.  1894,  Sec.  6289;  N.  Y.  Penal  Code,  Sec.  4  &  5;  Clark,  p.  33; 
Bishop  I.,  Sec.  615;  Wharton,  Sec.  22;  May,  Sec.  10;  Hawley  &  Mc- 
Gregor, p.  97. 


3.  MlSDEMEANOB. 

All  crimes  not  treasons  or  felonies  are  misdemeanors. 

PEOPLE  v.  WAR. 

Supreme  Court  of  California,  1862. 
20  Cal.  117. 

NORTON,  J.  delivered  the  opinion  of  the  court — Field,  C.  J. 
concurring. 

The  indictment  in  this  case  is  for  the  crime  of  "an  assault  with 
a  deadly  weapon,  with  intent  to  inflict  upon  the  person  of  another 


PEOPLE  V.  WAR.  201 

a  bodily  injury,  there  appearing  no  considerable  provocation 
therefor."  A  demurrer  to  the  indictment  was  sustained,  and  the 
people  have  appealed. 

The  indictment  is  proper  in  form.  The  offence  could  not  be 
stated  in  any  other  mode  that  would  better  comply  with  the  rules 
of  criminal  pleading  or  the  requirements  of  the  act  to  regulate 
proceedings  in  criminal  cases.  Section  two  hundred  and  thirty- 
seven  of  that  Act  requires  the  acts  constituting  the  offence  to  be 
stated.  According  to  the  form  given  in  section  two  hundred  and 
thirty-eight,  it  is  proper  to  precede  the  statement  of  the  acts  con- 
stituting the  offence  by  a  statement  of  the  crime  of  which  the 
party  is  indicted,  "giving  its  legal  appellation,  such  as  murder, 
arson,  manslaughter,  or  the  like,  as  designating  it  as  felony  or 
misdemeanor."  This  does  not  require  that  it  shall  be  called  a 
felony  or  a  misdemeanor,  but  it  assumes  that  the  legal  appella- 
tion of  the  crime  will  itself  show  whether  it  is  a  felony  or  a  mis- 
demeanor. If  the  legal  appellation  of  the  crime  as  given  in  the 
statute  defining  the  offence  does  not  show  whether  it  is  a  felony 
or  a  misdemeanor,  it  cannot  be  made  or  shown  to  be  one  or  the 
other  by  the  pleader  calling  it  a  felony  or  a  misdemeanor.  In  this 
indictment  the  legal  appellation,  that  is,  the  designation  of  the 
crime  as  given  in  section  fifty  of  the  Act  concerning  Crimes  and 
Punishments,  which  creates  the  offence,  is  properly  set  forth. 

The  real  objection  to  this  indictment,  if  there  be  any,  is  that 
the  facts  set  forth  do  not  constitute  a  public  offence,  because  the 
punishment  prescribed  being  either  imprisonment  in  the  State 
prison  or  a  fine,  it  does  not  appear  whether  it  is  a  felony  or  a  mis- 
demeanor, and  hence  it  does  not  necessarily  fall  within  any  class 
of  crimes  known  to  the  law.  The  discretion  given  as  to  the 
punishment  certainly  does  not  make  the  same  act  two  offences, 
and  it  would  be  a  singular  consequence  if  the  fixing  alternative 
punishments  belonging  to  different  classes  of  crimes  should  pre- 
vent a  criminal  act  from  being  indictable  as  any  crime.  We 
think,  however,  there  is  no  uncertainty  as  to  the  grade  of  the 
crime  charged.  "A  felony  is  a  public  offence,  punishable  by 
death  or  by  imprisonment  in  a  State  prison.  Every  other  public 
offence  is  a  misdemeanor."  (Act  to  regulate  proceedings  in  crimi- 
nal cases,  Sees.  4,  5.)  Under  these  definitions,  any  offence  which 
may  be  or  is  liable  to  be  punished  by  death  or  imprisonment  in 


202  KINDS. 

the  State  prison  is  a  felony.  Any  offence  which  is  not  liable  to 
such  punishment — that  is,  for  which  that  grade  of  punishment 
cannot  under  any  circumstances  be  inflicted — is  a  misdemeanor. 
Although  the  offence  charged  in  this  indictment  may,  in  the 
discretion  of  the  court  in  any  particular  case,  be  only  punished 
by  a  fine,  yet  the  offence  is  one  which  is  punishable,  which  is 
liable  to  be  punished,  by  imprisonment  in  the  State  prison,  and 
hence  it  must  be  prosecuted  with  the  forms  and  solemnities  of  a 
crime  of  the  grade  of  a  felony. 

The  case  being  one  of  felony,  it  follows  that  this  court  has 
jurisdiction  of  the  appeal. 

The  case  of  The  People  v.  Cornell  (16  Cal.  187)  decides  that 
a  judgment,  in  a  case  like  this,  which  has  limited  the  punishment 
to  a  fine,  cannot  be  appealed  to  this  court  as  not  being  a  case  of 
felony.  But  that  was  upon  the  ground  that  a  judgment  appealed 
from  was  a  judgment  for  a  misdemeanor,  and  that  the  nature 
and  extent  of  the  punishment  fixed  the  right  of  appeal.  The 
consequences  of  the  judgment  from  which  the  appeal  was  taken 
were  not  of  that  gravity  which  the  Legislature  had  deemed  req- 
uisite to  authorize  an  appeal  to  this  court.  In  the  present  case, 
no  judgment  has  been  pronounced  which  protects  the  defendant 
from  liability  to  be  punished  by  imprisonment  in  the  State  pri- 
son. As  the  point  ruled  in  that  case  is  not  the  same  as  the  one 
presented  in  this,  it  is  not  necessary  to  decide  whether  the  reasons 
assigned  in  the  two  cases  are  strictly  reconcilable. 

Judgment  reversed,  and  the  court  below  directed  to  give  judg- 
ment for  the  plaintiff  on  the  demurrer,  with  leave  to  the  defend- 
ant to  plead  to  the  indictment. 

Com.  v.  Newell,  7  Mass.  245;  Com.  v.  Barlow,  4  Mas.  439;  McGlnnis  v. 
State,  9  Humph.  43,  50;  Buford  v.  Com.,  14  B.  Mon.  24;  State  v.  Smith, 
8  Blackf.  489;  Thorp  r.  Com.,  3  Mete.  (Ky.)  411;  Minn.  Stat.1894,  Sec. 
6290;  N.  Y.  Penal  Code,  Sec.  4,  6,  15;  Clark,  p.  33;  Bishop  I.,  Sec.  623; 
Wharton,  Sec.  23;  May,  Sec.  11;  Hawley  &  McGregor,  p.  97;  The  Penal 
Code  of  Pa.;  Shields,  voL  I.,  233,  263,  267,  293,  296,  484,  489. 


COMMONWEALTH  V.  M'HALE.  203 


c. 

HOW  PRESCRIBED. 

1.  BY  THE  COMMON  LAW. 

Criminal  law  is  both  written  and  unwritten. 

The  unwritten  criminal  law  is  prescribed  by  the  common 
law.  It  consists  of  those  acts  recognized  as  criminal  and 
punished  by  common  consent  and  immemorial  usage.  It 
is  the  criminal  law  of  the  States  except  so  far  as  it  has 
been  changed  and  in  some  cases  supplanted  by  statute. 

COMMONWEALTH  v.  McHALE. 

Supreme  Court  of  Pennsylvania,  1881. 
97  Pa.  St.  397. 

DEFENDANTS  were  indicted  for  conspiring  to  secure  fraudulent 
•election  returns. 

PAXSON,  J.  The  court  below  quashed  the  indictment  in  each 
of  the  above  cases,  upon  the  ground  that  the  offences  charged 
were  barred  by  the  Statute  of  Limitations.  If,  as  was  assumed 
by  the  learned  judge,  the  indictments  are  under  the  Act  of  July 
2d,  1839,  and  its  supplements,  and  the  limitation  of  one  year 
contained  in  said  act  is  not  enlarged  by  the  77th  section  of  the 
Criminal  Procedure  Act  of  31st  March,  1860,  his  conclusion  is 
not  inaccurate.  A  careful  comparison  of  the  several  indictments 
with  the  act  of  1839  and  its  supplements  leads  us  to  the  con- 
elusion  that  they  are  not  laid  under  it,  and  hence  do  not  come 
within  its  limitation.  One  of  them,  Com.  v.  John  J.  Kelly,  No. 
300,  Jan.  T.  1880,  may  have  been  intended  to  come  within  the 


204  HOW   PRESCRIBED. 

provisions  of  section  106  of  said  act,  but  the  indictment  does  not 
charge  the  precise  offence  defined  in  said  section,  although  it 
does  one  of  a  similar  nature.  Nor  are  we  able  to  find  any  other 
act  of  Assembly  which  will  sustain  these  indictments.  If,  how- 
ever, the  acts  charged  are  offences  at  common  law  they  would 
not  come  within  the  limitation  claimed  for  the  act  of  1839.  The 
178th  section  of  the  Crimes  Act  of  31st  March,  1860,  Pamph. 
L.  425,  provides  that  "every  felony,  misdemeanor  or  offence 
whatever,  not  specially  provided  for  in  this  act,  may  and  shall 
be  punished  as  heretofore."  This  is  a  saving  section,  leaving 
every  crime  not  specially  provided  for  in  this  act  punishable  as 
heretofore:  Report  on  Penal  Code  37.  Under  it  an  indictment 
will  lie  against  a  woman  as  a  common  scold :  Com.  v.  Mohn,  .2 
P.  F.  Smith,  243. 

The  indictment  against  Anthony  McHale  contains  three 
counts.  In  the  first  count  it  is  charged  that  "intending  to  procure 
a  false  count  and  return  of  the  votes  cast  by  the  electors,"  etc., 
he  did  "make  false  and  fraudulent  entries  in  the  books  kept  by 
the  clerks  at  said  election  in  said  election  district,  which  books 
are  commonly  known  as  the  list  of  voters,  of  the  names  of  divers 
persons,  to  wit,  twenty-one  persons  whose  names  are  as  follows," 
etc.  The  second  count  charges  that,  with  like  intent,  he  did 
"deposit  among  the  ballots  cast  at  said  election  in  said  election 
district  by  the  electors  voting  thereat,  false  and  fraudulent  ballots 
of  a  large  number,  to  wit,  twenty-one  ballots,  "etc.  The  third  count 
charges  that  with  like  intent  he  did,  "with  the  connivance  of  the 
election  officers  holding  said  election,  undertake  and  assume  to 
count  the  ballots  cast  by  the  electors  voting  at  said  elec- 
tion in  said  election  district  and  did  falsely,  fraudulently, 
maliciously  and  unlawfully  make  a  false  and  fraudulent  count 
of  said  ballots  as  to  make  it  appear  that  two  hundred  and  eleven 
votes  were  deposited  for  one  Adolph  W.  Schalck  for  the  office 
of  district  attorney,  when  in  truth  and  in  fact  he  did  not  receive 
more  than  one  hundred  and  eighty-five  votes,"  etc. 

The  indictment  against  James  T.  Kelley  charges  that  with  a 
similar  intent  to  procure  a  false  count,  he  did  "deposit  among  the 
ballots  cast  at  said  election,  in  said  election  district,  by  the  elec- 
tors voting  thereat,  false  and  fraudulent  ballots  of  a  large  num- 
ber, to  wit:  twenty-one  ballots,"  etc. 


COMMONWEALTH  V.   M'lIALE.  205 

The  indictment  against  John  J.  Kelly  charges  substantially 
the  same  offence  as  is  set  out  in  the  first  count  of  the  indictment 
against  McHale. 

Some  of  these  offences,  perhaps  all  of  them,  are  indictable 
under  the  act  of  1839,  and  its  supplements,  when  committed  by 
election  officers.  The  defendants  were  not  election  officers;  at 
least,  they  were  not  indicted  as  such. 

It  must  be  conceded  that  offences  which  strike  at  the  purity 
and  fairness  of  elections  are  of  a  grave  character.  Are  they  in- 
dictable at  the  common  law?  This  is  a  serious  and  at  the  same 
time  comparatively  new  question.  In  considering  it,  we  have  lit- 
tle in  the  way  of  authority  to  guide  us. 

It  was  assumed  by  the  learned  counsel  for  the  defendants  that 
an  indictment  will  not  lie  at  common  law  for  such  acts.  In  their 
printed  argument  they  dismiss  the  subject  with  this  brief  remark: 
"Offences  against  the  election  laws  are  unknown  to  the  common 
law;  they  are  purely  and  exclusively  of  statutory  origin."  It 
may  safely  be  admitted  that  if  the  question  depends  upon  the 
fact  whether  a  precise  definition  of  this  offence  can  be  found  in 
the  text  books,  or  perhaps  in  the  adjudged  English  cases,  the  law 
is  with  the  defendants.  This,  however,  would  be  a  narrow  view, 
and  we  must  look  beyond  the  cases  and  examine  the  principles 
upon  which  common-law  offences  rest.  It  is  not  so  much  a  ques- 
tion whether  such  offences  have  been  so  punished  as  whether  they 
might  have  been. 

What  is  a  common-law  offence? 

The  highest  authority  upon  this  point  is  Blackstone.  In  chap. 
13,  of  vol.  4,  of  Sharswood's  edition,  it  is  thus  defined:  "The 
last  species  of  offences  which  especially  affect  the  Common- 
wealth are  those  against  the  public  police  or  economy.  By  the 
public  police  and  economy  I  mean  the  due  regulation  and  do- 
mestic order  of  the  kingdom,  whereby  the  individuals  of  the 
State,  like  members  of  .a  well-governed  family,  are  bound  to  con- 
form their  general  behavior  to  the  rules  of  propriety,  good  neigh- 
borhood and  good  manners,  and  to  be  decent,  industrious  and  in- 
offensive in  their  respective  stations.  This  head  of  offences  must 
therefore  be  very  miscellaneous,  as  it  comprises  all  such  crimes 
as  especially  affect  public  society,  and  are  not  comprehended 
under  any  of  the  four  preceding  series.  These  amount  some  of 


206  HOW   PRESCRIBED. 

them  to  felony,  and  others  to  misdemeanors  only."  The  learned 
author  then  proceeds  to  define  certain  offences  of  both  classes 
which  are  among  the  crimes  against  the  public  police  or 
economy.  The  felonies  I  will  omit.  The  misdemeanors  are:  1. 
Common  or  public  nuisances,  of  which  a  large  variety  are  given, 
commencing  with  obstructions  to  public  highways  and  ending 
with  common  scolds.  2.  Idleness.  3.  Sumptuary  laws.  4.  Gam- 
ing. 5.  Destroying  game.  These,  as  the  text  shows,  are  but  il- 
lustrations. A  large  number  of  these  and  other  common-law 
offences  are  now,  and  have  for  many  years  been  regulated  by 
statute  in  England.  But  in  mose  instances  the  statute  is  merely 
declaratory  of  the  common  law,  the  object  being  to  define  the 
crime  with  greater  accuracy  or  to  increase  the  punishment. 

The  above  quotation  from  Blackstone  is  in  harmony  with 
other  text  writers.  Bishop  in  his  work  on  Criminal  Law,  vol.  Lr 
Sees.  358  and  368  (1st  ed.)  says:  "The  government  requires  its 
subjects  to  do  more  than  simply  abstain  from  attempting  its  over- 
throw. It  requires  them  to  give,  when  called  upon,  their  active 
assistance  to  it,  and  at  all  times  to  refrain  from  casting  obstruc- 
tions in  the  way  of  its  several  departments  and  functions.  There- 
fore every  violation  of  these  duties,  being  sufficient  in  magnitude 
for  the  law  to  regard,  is  criminal.  *  *  *  We  see  it  to  be  of 
the  highest  importance  that  persons  be  elected  to  carry  on  the 
government  in  its  various  departments,  and  that  in  every  case  a 
suitable  choice  be  made.  Therefore  any  act  tending  to  defeat 
these  objects,  as  forcibly  or  unlawfully  preventing  an  election 
being  held,  bribing  or  corruptly  influencing  an  elector,  casting 
more  than  one  vote,  is  punishable  under  the  criminal  common 
law."  Mr.  Wharton  in  his  work  on  Criminal  Law,  vol.  i.  Sec.  6 
(6th  ed.),  places  the  giving  of  more  than  one  vote  at  an  election 
as  among  the  misdemeanors  at  common  law.  The  Supreme 
Judicial  Court  of  Massachusetts  in  two  cases  has  recognized  the 
same  doctrine.  The  first  was  Commonwealth  v.  Silsbee,  9  Mass. 
417,  which  was  an  indictment  charging  that  the  defendant  did 
"willfully,  fraudulently,  knowingly  and  designedly  give  in  more 
than  one  vote  for  the  choice  of  selectmen  of  the  said  town  of 
Salem  at  one  time  of  balloting,"  etc.  After  conviction  the  defendant 
moved  in  arrest  of  judgment  that  there  was  no  statute  covering 
the  offence.  It  was  said  by  the  court:  "There  cannot  be  a  doubt 


COMMONWEALTH  V.  M'HALE.  207 

that  the  offence  described  in  the  indictment  is  a  misdemeanor  at 
common  law.  It  is  a  general  principle  that  where  a  statute  gives 
a  privilege,  and  one  willfully  violates  such  privilege,  the  common 
law  will  punish  such  violation.  In  town  meetings  every  qualified 
voter  has  equal  rights,  and  is  entitled  to  give  one  vote  for  every 
officer  to  be  elected.  The  person  who  gives  more  infringes  and 
violates  the  rights  of  other  voters,  and  for  this  offence  the 
common  law  gives  the  indictment."  The  other  case  is  Common- 
wealth v.  Hoxey,  16  Mass.  385.  The  defendant  was  charged  with 
disturbing  a  town  meeting  assembled  to  make  choice  of  town 
officers  for  the  political  year  then  ensuing,  and  that  the  said  de- 
fendant, "intending  as  much  as  in  him  lay  to  prevent  the  choice 
of  said  selectmen  according  to  the  will  of  the  electors  and  to  in- 
terrupt the  freedom  of  election,  unlawfully  and  disorderly  did 
openly  declare  that  the  old  selectmen  should  not  be  chosen,  and 
attempted  repeatedly  to  take  from  the  box,  which  contained  the 
ballots  of  the  electors,  the  votes  of  the  electors,"  etc.  The  de- 
fendant pleaded  guilty  to  the  indictment,  and  moved  in  arrest 
of  judgment;  "because  the  said  indictment  purports  to  be  founded 
upon  a  statute  law  of  the  Commonwealth;  whereas  there  is  no 
such  statute  in  the  State  making  the  facts  set  forth  in  the  indict- 
ment an  offence  against  the  Commonwealth;  and  because  the 
facts  set  forth  in  the  indictment  do  not  amount  to  an  offence  at 
common  law."  The  court,  after  admitting  there  was  no  statute 
to  meet  the  case,  proceeded  to  say:  "The  remaining  question  is, 
do  the  facts  charged  amount  to  an  offence  at  common  law?  On 
this  question  we  entertain  no  doubts.  Here  was  a  violent  and 
rude  disturbance  of  the  citizens,  lawfully  assembled  in  town 
meeting,  and  in  the  actual  exercise  of  their  municipal  rights  and 
duties.  The  tendency  of  the  defendant's  conduct  was  to  a  breach 
of  the  peace,  and  to  the  prevention  of  elections  necessary  to  the 
orderly  government  of  the  town,  and  due  management  of  its 
concerns  for  the  year.  It  is  true  that  the  common  law  knows 
nothing  perfectly  agreeing  with  our  municipal  assemblies.  But 
other  meetings  are  well  known  and  often  held  in  England,  the 
disturbance  of  which  is  punishable  at  common  law  as  a  mis- 
demeanor. In  this  Commonwealth  town  meetings  are  recognized 
in  our  Constitution  and  laws;  and  the  elections  made  and  busi- 
ness transacted  by  the  citizens  at  those  meetings  lie  at  the  founda- 


208  HOW   PRESCRIBED. 

tion  of  our  whole  civil  polity.  If  then  there  were  no  statute 
prohibiting  disorderly  conduct  at  such  meetings,  an  indictment 
for  such  conduct  might  be  supported."  While  the  court  put  this 
case  partly  upon  the  ground  that  the  defendant's  conduct  tended 
to  a  breach  of  the  peace,  it  is  evident  the  principal  reason  was 
the  interference  with  the  rights  of  the  electors,  which  as  the 
learned  judge  truly  said  "lie  at  the  foundation  of  our  civil 
polity,"  and  it  may  be  safely  asserted  that  every  fraud  upon  the 
ballot  tends  directly  to  a  breach  of  the  public  peace  if  not  to 
revolution  and  civil  war. 

We  are  of  opinion  that  all  such  crimes  as  especially  affect 
public  society  are  indictable  at  common  law.  The  test  is  not 
whether  precedents  can  be  found  in  the  books,  but  whether  they 
injuriously  affect  the  public  police  and  economy. 

It  needs  no  argument  to  show  that  the  acts  charged  in  these 
indictments  are  of  this  character.  They  are  not  only  offences 
which  affect  public  society,  but  they  affect  it  in  the  gravest  manner. 
An  offence  against  the  freedom  and  purity  of  elections  is  a  crime 
against  the  nation.  It  strikes  at  the  foundations  of  republican 
institutions.  Its  tendency  is  to  prevent  the  expression  of  the 
will  of  the  people  in  the  choice  of  r(ulers,  and  to  weaken  the 
public  confidence  in  elections.  When  this  confidence  is  once  de- 
stroyed the  end  of  popular  government  is  not  distant.  Surely,  if 
a  woman's  tongue  can  so  far  affect  the  good  of  society  as  to 
demand  her  punishment  as  a  common  scold,  an  offence  which 
involves  the  right  of  a  free  people  to  choose  their  own  rulers  in 
the  manner  pointed  out  by  law  is  not  beneath  the  dignity  of  the 
common  law,  nor  beneath  its  power  to  punish.  The  one  is  an 
annoyance  to  a  small  portion  of  the  body  politic ;  the  other  shakes 
the  social  fabric  to  its  foundations. 

We  are  of  opinion  that  the  offences  charged  in  these  indict- 
ments are  crimes  at  common  law.  We  regard  the  principle  thus 
announced  as  not  only  sound  but  salutary.  The  ingenuity  of 
politicians  is  such  that  offences  against  the  purity  of  elections 
are  constantly  liable  to  occur  which  are  not  specifically  covered 
by  statute.  It  would  be  a  reproach  to  the  law  were  it  powerless 
to  punish  them. 

It  follows  from  what  has  been  said  that  it  was  error  to  quash 
the  indictments. 


MARVIN  V.  STATE. 

The  judgment  is  reversed  in  each  case,  and  a  procedendo 
awarded. 

Com.  v.  Chapman,  13  Mete.  (Mass.)  68;  Com.  v.  Harrington,  3  Pick.  26; 
Brock  way  v.  People,  2  Hill  558;  Walsch  v.  People,  65  111.  58;  Com.  v. 
Silsbee,  9  Mass.  417;  State  v.  Rollins,  8  N.  H.  550;  Kilpatrick  v.  People, 
5  Denio  277;  Henderson  v.  Com.,  8  Gratt.  708;  Brooks  v.  State,  2  Yerg. 
482;  State  v.  Huntly,  3  Ired.  418;  Territory  v.  Ye  Wan,  2  Mont.  478; 
Clark,  p.  15;  May,  Sec.  2;  Bishop  I.,  Sec.  30  et  seq.;  Wharton,  Sec.  15  a.; 
Hawley  &  McGregor,  p.  3. 


2.  BY  STATUTE. 

In  some  States  no  act  is  a  crime  unless  made  so  by 
statute.  In  such  States  the  entire  criminal  law  is  pre- 
scribed by  the  penal  code  of  each  respective  State. 

MARVIN  v.  STATE. 

Supreme  Court  of  Judicature  of  Indiana,  1862. 
19  Ind.  181. 

PERKINS,  J.  Jesse  Marvin  was  prosecuted  in  the  Fountain 
Common  Pleas,  for  disturbing  a  religious  meeting  by  responding 
to  the  preacher.  He  was  convicted  and  fined. 

We  have  a  statute  which  enacts,  that  if  any  person  shall  keep  a 
place  for  the  sale  of  any  article;  or  shall  sell  any  article;  or  shall 
keep  any  gaming  apparatus;  or  shall  permit  his  real  property  to 
be  occupied  for  any  of  the  aforementioned  purposes,  or  with  the 
aforementioned  apparatus,  within  a  mile  of  any  meeting,  as- 
sembled for,  etc.,  or  shall  disturb  any  such  meeting,  or  any  mem- 
ber thereof,  either  at  the  meeting,  or  while  going  to  or  returning 
from  the  same,  etc.,  shall  be  fined  not  less  than  five  nor  more 
than  twenty-five  dollars.  2  G.  &  H.,  p.  469. 

The  defendant  in  this  case,  as  appears,  was  not  prosecuted  for 

any  one  of  the  acts  specified  in  the  statute  as  constituting  a  crime, 

as  entering  into  its  definitions,  but  under  the  general  clause,  for 

.disturbing  a  religious  meeting;  a  clause  which  defines  nothing, 

14 


210  HOW   PRESCRIBED. 

but  enacts  a  vague  conclusion,  an  abstract,  general  proposition, 
of  infinitely  uncertain  application.  And  the  question  is:  Can 
the  conviction,  upon  that  branch  of  the  statute,  be  sustained? 

Before  proceeding  to  answer  this  question,  we  may,  with 
propriety,  look  a  moment  or  two  at  some  heretofore,  in  this 
country,  generally  conceded  views  and  propositions: 

1.  There  are  two  general  modes  of  government,  viz.,  by  rule, 
or  established  laws,  and  without  rule,  without  regard  to  law, 
that  is,  by  magisterial  discretion. 

In  theory,  a  political  organization,  governed  by  magisterial 
discretion,  is  an  unmitigated  despotism;  and,  according  to  his- 
tory, it  has  generally  turned  out  to  be  so  in  practice.  In  past 
years,  the  Sultan  of  Turkey,  the  Autocrat  of  Russia,  and  some 
of  the  kings  and  emperors  of  ancient  Rome,  governed  by  magis- 
terial discretion.  The  Tudors  and  Stuarts  of  England  attempted 
the  same  kind  of  government.  Government  by  such  discretion, 
is  the  government  of  a  master  over  a  slave. 

2.  The  devising  of  proper  and  efficient  checks  upon  govern- 
mental discretion,  whereby  lawless  outrage  upon  the  citizen  may 
be    prevented,  is  one  of  the  greatest  achievements  in  political 
science.  Among  the  checks  already  devised  for  such  purpose,  are 
the  division  of  a  single  government  into  departments,  and  the 
framing,  with  precision  and  certainty  of  expression  and  defini- 
tion, of   written    constitutions   and   laws,  declaring  the  rights, 
duties,  and  liabilities    of    all,  and    controlling  the  action,  and 
limiting  the  powers,  alike  of  the  governors  and  the  governed. 

3.  Magisterial  discretion,  in  declaring  and  punishing  crimes, 
is,  perhaps,  more  liable  to  abuse,  and  to  be  made  the  instrument 
of  tyranny  and  oppression,  than  it  is  in  any  other  branch  of  ad- 
ministration.   Hence  the  necessity  of  the  most  efficient  checks, 
and  their  most  scrupulous  observance  in  this  branch.   Influenced, 
we  may  presume,  by   these    considerations,  it    has  been    made 
established  law,  that  there  are  no  common  law  crimes  in  this 
State;    that,  in   Indiana,  "Crimes   and   misdemeanors   shall  be 
defined,  and  punishment  therefor  fixed  by  the  statutes  of  this 
State,  and  not  otherwise."   1  G.  &  H.,  p.  416,  and  notes. 

This  may  be  an  injudicious  application  of  the  doctrine  of  limit- 
ing discretion ;  it  may  be  carrying  it  to  extreme.  It  not  only  cuts 
off  magisterial,  executive  discretion  in  declaring  crimes,  which 


MARVIN  V.  STATE.  211 

is  certainly  right,  but,  also  judicial,  which  may  be  wrong,  and  is 
surely  inconvenient,  when  applied  to  every  possible  case. 
The  legislature  can  scarcely  foresee  every  state  of  facts,  can 
scarcely  anticipate  every  possible  act,  and,  hence,  can 
scarcely  prescribe  specially  for  every  individual  case; 
while,  one  the  other  hand,  the  judiciary  acts  generally  upon 
individual  cases  as  they  occur,  and  is  thus  enabled,  by  a  careful 
and  wise  discrimination,  to  gradually  build  up  a  criminal  code, 
within  limits  prescribed  by  the  legislature,  more  just  and  certain 
in  character  than  might  otherwise  be  obtained.  At  the  same 
time,  it  must  be  accomplished  through  the  judiciary,  by  open, 
speedy  public  trials,  with  the  aid  of  counsel  and  jury,  whereby 
tyranny  and  abuse  will  be  pretty  effectually  checked. 

It  might  be  better  to  leave  the  power  in  the  courts  of  defining, 
upon  given  states  of  fact,  or  going  to  the  common  law  for  defini- 
tions, in  cases  of  necessity,  as  was  formerly  the  practice  in  this 
State.  See  1  Kent  Com.,  Lecture  16.  But  we  have  not  to  decide 
upon  what  the  law  might  be,  but  what  it  is.  It  is,  that  the  legisla- 
ture alone  can  define  a  crime  in  Indiana.  No  crime,  then,  can  be 
punished,  in  Indiana,  by  her  own  courts,  till  it  has  been  defined. 
No  power  can  define  a  crime  but  the  legislative ;  hence,  the  court 
can  not  do  it  here,  as  it  can  in  England,  in  case  of  misdemeanors. 
The  question  in  this  case  is,  then:  Has  the  legislature  defined 
the  crime  of  disturbing  a  meeting?  If  so,  what  is  the  definition? 
Where  is  it  to  be  found?  What  must  a  person  do  to, 
in  legal  meaning,  disturb  a  meeting,  or  a  member  thereof?  Will 
a  look  disturb?  Will  a  smile?  Will  a  word  spoken?  Will  a 
posture,  or  style  of  dress  disturb?  If  so,  what?  Who  can  give  an 
exact  answer?  And,  is  intention  with  which  an  act  is  done  to  be 
material?  Naming  a  crime  is  not  defining  it;  but  a  definition  is. 
an  enumeration  of  the  particular  acts  included  by  or  under  the 
name. 

That  part  of  the  section  of  the  statute,  then,  which  simply 
declares  that  it  is  a  crime  to  disturb  a  meeting,  only  names,  with- 
out defining,  a  crime;  and  the  court  can  not  define  it  without 
exercising  magisterial  discretion;  and  judge-made  law,  in  this 
case,  would,  perhaps,  be  the  law  of  a  tyrant.  See  Spencer  v.  The 
State,  5  Ind.,  p.  46. 

The  decision  we  here  make  but  follows  those  in  Hackney  v. 


212  HOW    PRESCRIBED. 

The  State,  8  Ind.  494,  and  Jennings  v.  The  State,  and  The  State 
v.  Huey,  16  Id.,  pp.  335,  338. 

Per  Curiam. — The  judgment  is  reversed.  Cause  remanded  to 
be  dismissed. 

Com.  v.  Walte,  11  Allen  264;  Hackney  v.  State,  8  Ind.  494;  Mitchell 
v.  State,  42  Ohio  St.  383;  Smith  v.  State,  12  Ohio  St.  466;  Jones  v.  State, 
59  Ind.  229;  Minn.  Stat  1894,  Sec.  6286;  N.  Y.  Penal  Code,  Sec.  2; 
Clark,  p.  22;  May,  Sec.  3;  Hawley  &  McGregor,  p.  4,  note. 

NOTE.— In  some  States  having  a  criminal  code,  it  is  held  that  the  com- 
mon law  is  not  abrogated;  that  the  code  only  supplants  it  where  it  is 
Inconsistent,  and  that  the  general  effect  of  the  code  is  to  enlarge  and 
make  more  specific  the  field  of  criminal  liability. 

Pitcher  v.  People,  16  Mich.  142;  State  v.  Pulle,  12  Minn.  164;  State  v. 
Danforth,  3  Conn.  112;  State  v.  Gaunt,  13  Cr.  115;  Clark,  p.  30;  May, 
Sec.  3. 

NOTE. — The  United  States  courts  do  not  recognize  common  law 
crimes.  They  have  no  general  criminal  jurisdiction.  They  receive  no 
such  Jurisdiction  either  explicitly  or  impliedly  under  the  constitution. 

U.  S.  v.  Walsh,  5  Dillon  58;  U.  S.  v.  Coolidge,  1  Wheat.  415;  U.  S.  v. 
Hudson,  7  Cranch  32;  U.  S.  v.  Worrall,  2  Dallas  384;  U.  S.  v.  Wiltber- 
ger,  5  Wheaton  76;  U.  S.  v.  Reese,  92  U.  S.  216;  Penn.  v.  Bridge  Co.,  13 
How.  519;  U.  S.  v.  Clark,  1  Gall.  497;  U.  S.  v.  Wilson,  3  Bl.  C.  C.  435; 
U.  S.  v.  Barney,  5  Bl.  294;  U.  S.  v.  Ramsey,  Hempst.  481;  In  re  Bergen, 
2  Hughes  516;  U.  S.  f.  Hare,  2  Wheeler  C.  C.  300. 

Contra.- U.  S.  v.  McGill,  4  Dall.  429;  U.  S.  v.  Smith,  6  Dean  Abr.  718; 
U.  S.  v.  Henfield,  Whart  St.  Trials  85;  May,  Sec.  4;  Wharton,  Sec.  253; 
Clark,  p.  22;  Bishop,  p.  22;  Bishop  I.,  Sec.  98;  Hawley  &  McGregor, p. 53. 


STATE  V.  HALL.  213 


D. 
JURISDICTION. 

An  offence  against  the  laws  of  one  sovereign  is  no 
offence  against  the  laws  of  another;  and  one  sovereign  has 
no  jurisdiction  over  crimes  committed  in  the  territory  of 
another.  Hence  it  is  important  to  determine  the  territorial 
limits  of  each  sovereign. 

1.  LOCALITY. 

A  crime's  locality  is  determined  by  the  place  where  the 
public  was  injured,  which  is  the  place  where  the  force  took 
effect. 

STATE  v.  HALL. 

Supreme  Court  of  North  Carolina,  1894. 
114  N.  C.  909;  19  S.  B.  602. 

PROSECUTION  against  William  Hall  and  John  Dockery  for 
murder.  From  a  judgment  of  conviction  defendants  appeal. 

SHEPHERD,  C.  J.  There  was  testimony  tending  to  show  that 
the  deceased  was  wounded  and  died  in  the  State  of  Tennessee, 
and  that  the  fatal  wounds  were  inflicted  by  the  prisoners  by 
shooting  at  the  deceased  while  they  were  standing  within  the 
boundaries  of  the  State  of  North  Carolina.  The  prisoners  have 
been  convicted  of  murder,  and  the  question  presented  is  whether 
they  committed  that  offence  within  the  jurisdiction  of  this  State. 

It  is  a  general  principle  of  universal  acceptation  that  one  State 


214  JURISDICTION. 

or  sovereignty  cannot  enforce  the  penal  or  criminal  laws  of  an- 
other, or  punish  crimes  or  offences  committed  in  and  against 
another  State  or  sovereignty.  Borer's  Inter-State  Law,  308;  Story's 
Conflict  Laws,  620-623;  The  Antelope,  10  Wheaton,  66-123; 
State  v.  Knight,  Taylor's  Rep.,  65;  State  v.  Brown,  1  Haywood, 
100;  State  v.  Cutshall,  110  N.  C.,  538. 

There  may,  by  reason  of  "a  statute  or  the  nature  of  a  particular 
case,"  be  apparent  exceptions  to  the  rule,  as  if  "one  personally 
out  of  the  country  puts  in  motion  a  force  which  takes  effect  in 
it,  he  is  answerable  where  the  evil  is  done,  though  his  presence 
was  elsewhere.  So  where  a  man,  standing  beyond  the  outer  line 
of  a  territory,  by  discharging  a  ball  over  the  line  kills  another 
within  it;  or  himself,  being  abroad,  circulates  libel  here,  or  in 
like  manner  obtains  here  goods  by  false  pretences;  or  does  any 
other  crime  in  our  own  locality  against  our  laws,  he  is  punishable, 
though  absent,  the  same  as  if  he  were  present."  1  Bishop  Cr. 
Law,  109-110;  State  v.  Cutshall,  supra. 

These  cases,  however,  are  but  instances  of  crimes  which  are 
considered  by  the  law  to  have  been  committed  within  our  ter- 
ritory, and  in  nowise  conflict  with  the  general  principle  to  which 
we  have  referred.  Starting,  then,  with  this  fundamental  prin- 
ciple and  avoiding  a  general  discussion  of  the  subject  of  extra- 
territorial crime,  we  will  at  once  proceed  to  an  examination  of 
the  interesting  question  which  has  been  submitted  for  our 
determination. 

It  seems  to  have  been  a  matter  of  doubt  in  ancient  times 
whether,  if  a  blow  were  struck  in  one  county  and  death  ensued 
in  another,  the  offender  could  be  prosecuted  in  either,  though 
according  to  Lord  Hale  (Pleas  of  the  Crown,  426)  "the  more 
common  opinion  was  that  he  might  be  indicted  where  the  stroke 
was  given."  This  difficulty,  as  stated  by  Mr.  Starkie,  was  sought 
to  be  avoided  by  the  legal  device  "of  carrying  the  dead  body 
back  into  the  county  where  the  blow  was  struck,  and  the  jury 
might  there,"  he  adds,  "inquire  both  of  the  stroke  and  death." 
1  Starkie  Cr.  PI.,  2  Ed.,  304;  1  Hawks,  PI.  of  Crown,  ch.  13;  1 
East,  361.  But  to  remove  all  doubt  in  respect  to  a  matter  of  such 
grave  importance,  it  was  enacted  by  the  statute  2  and  3  Edward 
VI.  that  the  murderer  might  be  tried  in  the  county  where  the 
death  occurred.  This  statute,  either  as  a  part  of  the  common  law 


STATE  V.   HALL.  215 

or  by  re-enactment,  is  in  force  in  many  of  the  States  of  the 
Union,  and  as  applicable  to  counties  within  the  same  State  its 
validity  has  never  been  questioned  (see  Acts  1891,  ch.  68,  and 
also  The  Code  of  Tennessee,  Sec.  5801),  but  where  its  provisions 
have  been  extended  so  as  to  affect  the  jurisdiction  of  the  differ- 
ent States  its  constitutionality  has  been  vigorously  assailed.  Such 
legislation,  however,  has  been  very  generally,  if  not  indeed  uni- 
formly, sustained.  Simpson  v.  State,  4  Hump.  (Tenn.),  461; 
Green  v.  State,  66  Ala.,  40;  Commonwealth  v.  Macloon,  101 
Mass.,  1;  Tyler  v.  People,  8  Mich.,  326;  Hemmaker  v.  State,  12 
Mo.,  453;  People  v.  Burke,  11  Wend.,  129;  Hunter  v.  State,  40 
N.  J.,  495. 

Statutes  of  this  character  "are  founded  upon  the  general  power 
of  the  Legislature,  except  so  far  as  restrained  by  the  Constitu- 
tion of  the  Commonwealth  and  the  United  States,  to  declare  any 
willful  or  negligent  act,  which  causes  an  injury  to  person  or 
property  within  its  territory,  to  be  a  crime."  Kerr  on  Homicide, 
47.  See,  also,  remarks  of  Justice  Bradley  in  the  habeas  corpus 
proceedings  of  Guiteau,  reported  in  the  notes  to  the  case  of 
United  States  v.  Guiteau,  47  Am.  Kep.,  247;  1  Mackey,  498. 
In  many  of  the  States  there  are  also  statutes  substantially  provid- 
ing that  where  the  death  occurs  outside  of  one  State,  by  reason 
of  a  stroke  given  in  another,  the  latter  State  may  have  jurisdic- 
tion. See  our  act,  The  Code,  Sec.  1197.  The  validity  of  these 
statutes  seems  to  be  undisputed,  and,  indeed,  it  has  been  held  in 
many  jurisdictions  that  such  legislation  is  but  in  affirmance  of 
the  common  law.  This  view  is  taken  by  the  Supreme  Court  of 
the  District  of  Columbia  in  Guiteau's  case,  supra,  in  which  the 
authorities  are  collected  and  their  principle  stated  with  much 
force  by  Justice  James.  It  is  manifest  that  statutes  of  this  nature- 
are  only  applicable  to  cases  where  the  stroke  and  the  death  occur 
in  different  jurisdictions,  and  it  is  equally  clear  that  where  the 
stroke  and  the  death  occur  in  the  same  State  the  offence  of  mur- 
der at  common  law  is  there  complete,  and  the  courts  of  that  State 
can  alone  try  the  offender  for  that  specific  common  law  crime. 

The  turning  point,  therefore,  in  this  case  is  whether  the  stroke 
was,  in  legal  contemplation,  given  in  Tennessee,  the  alleged  place 
of  death ;  and  upon  this  question  the  authorities  all  seem  to  point 
in  one  direction. 


216  JURISDICTION. 

In  the  early  case  of  Rex  v.  Coombs,  1  Leach  Crown  Cases, 
388,  it  was  held  that  "if  a  loaded  pistol  be  fired  from  the  land  at 
a  distance  of  one  hundred  yards  from  the  sea,  and  a  man  is  mali- 
ciously killed  in  the  water  one  hundred  yards  from  the  shore,  the 
offender  shall  be  tried  by  the  Admiralty  Jurisdiction;  for  the 
offence  is  committed  where  the  death  happened  and  not  at  the 
place  whence  the  cause  of  the  death  proceeds."  See  also,  1  East, 
367,  and  1  Chitty  Cr.  Law,  154. 

In.  the  case  of  United  States  v.  Davis,  2  Sumner,  482,  a  gun 
was  fired  from  an  American  ship  lying  in  the  harbor  of  Raiatea, 
one  of  the  Society  Isles  and  a  foreign  government,  by  which  a 
person  on  board  a  schooner,  belonging  to  the  natives  and  lying  in 
the  same  harbor,  was  killed — Mr.  Justice  Story,  in  the  course  of 
his  opinion,  said:  "What  we  found  ourselves  upon  in  this  case  is 
that  the  offence,  if  any,  was  committed  on  board  of  a  foreign 
schooner  belonging  to  inhabitants  of  the  Society  Islands,  and  of 
course  under  the  territorial  government  of  the  Society  Islands, 
with  which  kingdom  we  have  trade  and  friendly  intercourse,  and 
which  our  government  may  be  presumed  (since  we  have  a  consul 
there)  to  recognize  as  entitled  to  the  rights  and  sovereignty  of  an 
independent  nation,  and  of  course  entitled  to  try  offences  com- 
mitted within  its  territorial  jurisdiction.  I  say  the  offence  was 
committed  on  board  of  the  schooner;  for,  although  the  gun  was 
fired  from  the  ship  Rose,  the  shot  took  effect  and  the  death 
happened  on  board  of  the  schooner,  and  the  act  was,  in  con- 
templation of  law,  done  where  the  shot  took  effect. 
We  lay  no  stress  on  the  fact  that  the  deceased  was  a  foreigner. 
Our  judgment  would  be  the  same  if  he  had  been  an  American 
citizen." 

In  Simpson  v.  State,  17  S.  E.  Rep.,  984,  it  was  held  by  the 
Supreme  Court  of  Georgia  that  one  who,  in  the  State  of  South 
Carolina,  aims  and  fires  a  pistol  at  another  who  at  the  time  is  in 
the  State  of  Georgia,  is  guilty  of  the  offence  of  "shooting  at 
another"  although  the  ball  did  not  take  effect,  but  struck  the 
water  in  the  latter  State.  The  court  said:  "Of  course  the  pres- 
ence of  the  accused  within  this  State  is  essential  to  make  his  act 
one  which  is  done  in  this  State,  but  the  presence  need  not  be 
actual;  it  may  be  constructive.  The  well-established  theory  of 
the  law  is  that  where  one  puts  in  force  an  agency  for  the  com- 


STATE  V.   HALL.  217 

mission  of  crime,  he  in  legal  contemplation  accompanies  the 
same  to  the  point  where  it  becomes  effectual.  *  *  *  So,  if  a 
man  in  the  State  of  South  Carolina  criminally  fires  a  ball  into 
the  State  of  Georgia  the  law  regards  him  as  accompanying  the 
ball  and  as  being  represented  by  it  up  to  the  point  where  it 
strikes.  If  an  unlawful  shooting  occurred  while  both  the  parties 
were  in  this  State  the  mere  fact  of  missing  would  not  render  the 
person  who  shot  any  the  less  guilty;  consequently,  if  one  shoot- 
ing from  another  State  goes,  in  a  legal  sense,  where  his  bullet 
goes,  the  fact  of  his  missing  the  object  at  which  he  aims  cannot 
alter  the  legal  principle." 

The  court  approved  of  the  language  of  Campbell,  J.,  in  Tyler 
v.  People,  8  Mich.,  320,  that  "a  wounding  must  of  course  be  done 
where  there  is  a  person  wounded,  and  the  criminal  act  is  the  force 
against  his  person.  That  is  the  immediate  act  of  the  assailant, 
whether  he  strikes  with  a  sword  or  shoots  with  a  gun,  and  he 
may  very  reasonably  be  held  present  where  his  forcible  act  be- 
comes directly  operative." 

In  speaking  of  crime  committed  by  one  out  of  the  State, 
through  an  innocent  agent,  Judge  Rorer  says:  'In  such  case  the 
innocent  person  in  the  State  is  the  means  used  to  perpetrate  the 
crime  therein,  just  as  if  a  person  who  shoots  out  of  a  State  across 
the  line  into  another  State  and  therein  intentionally  kills  another 
person  is  in  such  case  guilty  of  committing  the  criminal  act 
within  the  State  without  himself  being  at  the  time  therein."  In- 
terstate Law,  326. 

In  Commonwealth  v.  Macloon,  supra,  Justice  Gray  says  that 
if  one's  "unlawful  act  is  the  efficient  cause  of  the  mortal  in- 
jury, his  personal  presence  at  the  time  of  its  beginning,  its  con- 
tinuance, or  its  result,  is  not  essential.  He  may  be  held  guilty  of 
homicide  by  shooting,  even  if  he  stands  afar  off,  out  of  sight,  or 
in  another  jurisdiction." 

In  State  v.  Carter,  3  Dutcher,  499,  the  Supreme  Court  of  New 
Jersey,  in  discussing  a  kindred  question,  said:  "This  is  not  the 
case  where  a  man  stands  on  the  New  York  side  of  the  line,  and 
shooting  across  the  border  kills  one  in  New  Jersey.  "When  that 
is  so  the  blow  is  in  fact  struck  in  New  Jersey.  It  is  the  defend- 
ant's act  in  this  State.  The  passage  of  the  ball,  after  it  crosses 
the  boundary,  and  its  actual  striking,  is  the  continuous  act  of  the 


218  JURISDICTION. 

defendant.  In  all  cases  the  criminal  act  is  the  impinging  of  the 
weapon,  whatever  it  may  be,  on  the  person  of  the  party  injured, 
and  that  must  necessarily  be  where  the  impingement  happens. 
And  whether  the  sword,  the  ball,  or  any  other  missile  passes  over 
a  boundary  in  the  act  of  striking  is  a  matter  of  no  consequence. 
The  act  is  where  it  strikes,  as  much  where  the  party  who  strikes 
stands  out  of  the  State  as  where  he  stands  in  it." 

In  State  v.  Chapin,  17  Ark.,  560,  the  court  said:  "For 
example,  if  a  man  standing  beyond  our  boundary  line,  in  Texas, 
were,  by  firing  a  gun  or  propelling  any  other  implement  of 
death,  to  kill  a  person  in  Arkansas,  he  would  be  guilty  of  mur- 
der here,  and  answerable  to  our  laws,  because  the  crime  is  re- 
garded as  being  committed  where  the  shot  or  other  implement 
propelled  takes  effect."  See  also,  People  v.  Adams,  3  Denio,  207. 

In  Stillman  v.  Manufacturing  Co.,  3  Woodb.  &  M.  (U.  S.), 
538,  Woodbury,  J.,  said:  "I  can  conceive  of  crimes,  likewise, 
like  civil  injuries,  which  may  be  prosecuted  in  two  States,  though 
sometimes  in  different  forms  as  here.  *  *  *  So,  if  one  fires 
a  gun  in  one  State,  which  kills  an  individual  in  another  State, 
there  may  be  the  offence  of  using  a  deadly  weapon  in  the  first 
State  (that  is,  we  suppose,  by  statute)  and  committing  murder  by 
killing  in  the  second  State." 

In  speaking  of  the  validity  of  acts  similar  to  that  of  Edward 
VI. ,  supra,  Mr.  Black,  in  an  article  in  the  "Central  Law  Jour- 
nal" (Vol.  XXXVm,  p.  318),  remarks:  "There  is  less  difficulty 
in  cases  where  the  means  of  death  employed,  though  set  in 
motion  in  one  jurisdiction,  reach  and  operate  upon  their  object  in 
another  territory.  For,  of  course,  the  act  can  amount  to  nothing 
more  than  an  attempt,  until  the  fatal  agency  comes  in  contact 
with  the  body  of  the  victim."  See,  also,  upon  this  subject  "Ameri- 
can Law  Review,"  Vol.  XX,  p.  918. 

In  view  of  the  foregoing  authorities  it  cannot  be  doubted  that 
the  place  of  the  assault  or  stroke  in  the  present  case  was  in 
Tennessee,  and  it  is  also  clear  that  the  offence  of  murder  at 
common  law  was  committed  within  the  jurisdiction  of  that  State. 
If  this  be  so  it  must  follow  that  unless  we  have  some  statute  ex- 
pressly conferring  jurisdiction  upon  the  courts  of  this  State,  or 
making  the  act  of  shooting  under  the  circumstances  a  substantive 
murder,  the  offence  with  which  the  prisoners  are  charged  can 
only  be  tried  by  the  tribunals  of  Tennessee. 


STATE  V.   HALL.  219 

It  is  true  that  in  "Wharton's  Criminal  Law,  288,  it  is  said  in  a 
general  way  that  "a  concurrent  jurisdiction  exists  in  the  place 
of  starting  the  offence,"  but  byareference  to  the  cases  cited  in  sup- 
port of  the  proposition  it  will  be  readily  seen-  that  they 
have  no  application  to  the  question  under  consideration.  These 
and  like  authorities  are  where  libels  are  uttered  in  one  State  to 
take  effect  in  another  (U.  S.  v.  Worrall,  2  Dall.,  383),  or  where, 
either  by  common  law  or  by  statute,  the  place  of  the  stroke  has 
concurrent  jurisdiction  (Green  v.  State,  supra),  or  where  an  ac- 
cessory before  the  fact  in  one  State  to  a  felony  committed  in 
another  was  held  to  be  indictable  in  the  State  where  he  became 
accessory  (State  v.  Chapin,  supra),  or  in  certain  cases  of  false 
pretences,  or  in  conspiracies  where  an  overt  act  is  committed  at 
the  place  of  the  trial,  or  where  by  statute  a  particular  "section" 
of  an  offence  committed  in  one  jurisdiction  is  there  made  indict- 
able; as,  for  instance,  the  act  of  shooting  or  unlawfully  using  a 
deadly  weapon  within  the  State,  as  in  the  present  case.  In  some 
instances  there  may  be  concurrent  jurisdiction  of  the  whole  of- 
fence, and  in  others  there  may  exist  the  jurisdiction  of  an  attempt 
in  one  State  and  of  the  consummated  offence  in  another.  In  a 
note  to  the  preceding  section  the  author  thus  explains:  "The 
place  of  such  residence  (that  is,  where  the  offence  is  started)  has 
jurisdiction  over  the  attempt  or  conspiracy  as  the  case  may 
be.  The  place  of  the  consummation  has  jurisdiction  of 
the  offence  consummated  on  its  soil."  In  respect  to  this 
very  matter  the  learned  author  has  made  his  meaning  entirely 
clear  in  his  article  on  the  conflict  of  laws.  1  Criminal  Law 
Magazine,  695.  In  putting  the  case  of  A  in  ~New  York  shooting 
B  in  Connecticut,  he  says  that  the  place  of  the  consummation  of 
the  crime  should  be  regarded  as  its  locality.  "Until  such  consum- 
mation a  crime,  so  far  as  jurisdiction  is  concerned,  is  simply  an 
attempt  and  only  punishable  as  such.  It  may  be  indictable  for  A 
merely  to  discharge  a  gun.  It  may  be  said,  'This  is  a  dangerous 
act,  punishable  as  such;'  or  it  may  be  said,  'From  all  the  circum- 
stances of  the  case  we  infer  that  you  are  attempting  B's  life,  and 
you  are  to  be  indicted  for  this  attempt.'  But  it  is  not  until  we 
see  before  us  a  man  wounded  by  such  a  shot  that  the  crime  in  its 
completeness  exhibits  itself." 

There  being,  then,  no  concurrent  jurisdiction  at  common  law, 


220  JURISDICTION. 

we  will  now  consider  whether  it  has  been  conferred  by  statute; 
for  it  is  well  settled  that  "whenever  a  homicide  is  committed 
partly  in  and  partly  out  of  the  jurisdiction  where  the  charge  i& 
made,  the  power  to  punish  it  depends  upon  the  question  whether 
so  much  of  the  act  as  operates  in  the  county  or  State  in  which 
the  offender  is  indicted  and  tried  has  been  declared  to  be  punish- 
able by  the  law  of  that  jurisdiction."  Kerr  on  Homicide,  226; 
Commonwealth  v.  Macloon,  supra.  It  is  not  very  seriously  in- 
sisted on  the  part  of  the  State  that  our  statute  (The  Code,  Sec. 
1197)  applies  to  this  case,  but  inasmuch  as  it  was  referred  to  on 
the  argument  it  is  proper  that  we  should  briefly  examine  into  its 
provisions.  It  provides: 

"In  all  cases  of  felonious  homicide,  when  the  assault  shall 
have  been  made  within  this  State  and  the  person  assaulted  shall 
die  without  the  limits  thereof,  the  offender  shall  be  indicted  and 
punished  for  the  crime  in  the  county  where  the  assault  was  made, 
in  the  same  manner,  to  all  intents  and  purposes  as  if  the  person 
assaulted  had  died  within  the  limits  of  this  State." 

This  statute  has  received  a  judicial  construction  by  this  court 
in  State  v.  Dunkley,  3  Ired.,  116,  and  it  was  held  that  it  did  not 
create  any  new  offence,  but  merely  removed  a  difficulty  which 
existed  as  to  the  place  of  the  trial.  In  view  of  the  authorities, 
cited  it  can  hardly  be  contended  that  the  assault  in  the  present 
case  was  committed  in  this  State,  and  especially  is  this  so  when 
the  assault  mentioned  in  the  statute  evidently  means  not  a  mere- 
attempt,  but  such  an  injury  inflicted  in  this  State  which  results 
in  death  in  another  State.  This  would  seem  manifest  from  the 
history  of  the  legislation  as  well  as  the  language  of  the  act, 
which  plainly  contemplates  that  every  part  of  the  offence,  except 
the  death,  must  have  occurred  in  this  State.  It  was  a  subject  of 
doubt,  as  we  have  seen,  whether  the  accused  could  be  tried  in 
the  place  of  the  stroke,  the  death  having  occurred  without  the 
jurisdiction,  and  it  was  to  remove  this  doubt  alone  that  this  and 
similar  legislation  was  resorted  to.  It  was,  of  course,  never  ques- 
tioned that  the  place  where  both  the  stroke  and  the  death  oc- 
curred was  the  place  where  the  crime  was  committed.  We  are 
relieved,  however,  from  all  doubt,  if  any  existed,  upon  this  point 
by  the  opinion  of  Chief  Justice  RufRn  in  Dunkley's  case,  supra. 
He  says  that  the  act  "does  not  profess  to  define  'felonious  homi- 


STATE  V.   HALL.  221 

cide/  or  to  constitute  the  crime  by  any  particular  acts,but  merely 
says  that,  in  certain  cases  of  felonious  homicide,  the  offender 
may  be  indicted  and  of  course  tried  and  punished  in  the  county 
where  the  stroke  was  given — meaning,  though  it  does  not  (like 
the  statute  2  and  3,  Edward  VI.)  expressly  say  so,  'in  the  same 
manner  as  if  the  death  had  happened  in  the  same  county  where 
the  stroke  was  given.'  "  As  it  is  plain  that  in  contemplation  of 
law  the  stroke  was  given  in  Tennessee,  we  are  of  the  opinion  that 
there  was  error  in  refusing  to  give  the  instructions  prayed  for  by 
the  prisoners. 

The  fact  that  the  prisoners  and  the  deceased  were  citizens  of 
the  State  of  North  Carolina  cannot  affect  the  conclusion  we  have 
reached.     If,  as  we  have  seen,  the  offence    was  committed  in 
Tennessee,  the  personal  jurisdiction  generally  claimed  by  nations 
over  their  subjects  who  have  committed  offences  abroad  or  on  the 
high  seas  cannot  be  asserted  by  this  State.   Such  jurisdiction  does 
not  exist  as  between  the  States  of  the  Union  under  their  peculiar 
relation  to  each  other  (Rorer's  Interstate  Law,  308),  and  even 
if  it  could  be  rightfully  claimed  it  could  not  in  a  case  like  the 
present  be  enforced  in  the  absence  of  a  statute  providing  that  the 
offence  should  be  tried  in  North  Carolina.    Even  in  England, 
where  it  seems  the  broadest  claim  to  such  jurisdiction  is  asserted, 
a  statute  (33  Hen.  VII.)  appears  to  have  been  necessary  in  order 
that  the  courts  of  that  country  could  try  a  murder  committed  in 
Lisbon  by  one  British  subject  upon  another.    Rex  v.  Sawyer, 
Russell  &  Ryan  Cr.  Cases,  294,  cited  and  commented  upon  in 
Dunkley's  case,  supra.     In    People  v.  Merrill,  2  Parker's  Cr. 
Cases,  600,  it  is  said  that  by  the  common  law  offences  were  local 
and  the  jurisdiction  in  such  cases  depends  upon  statutory  pro- 
visions.  See,  also,  Wheaton  International  Law,  115;  1  Wharton 
Cr.  L.,  271;  1  Bishop  Cr.  Law,  121.   Granting,  however,  that  in 
some  instances  the  jurisdiction  may  exist  without  statute,  it  is 
not  exercised  in  all  cases.    Dr.  Wharton  says:    "It  has  already 
been  stated  that  as  to  crimes  committed  by  subjects  in  foreign 
civilized  States,  with  the  single  exception  in  England  of  homicides, 
the  Anglo-American  practice  is  to  take  cognizance  only  of  of- 
fences directed  against  the  sovereignty  of  the  prosecuting  State; 
perjury  before  consuls  and  forgery  of  government  documents 
being  included  in  this  head."   To  the  same  effect  is  3  Am.  and 


222  JURISDICTION. 

Eng.  Enc.,  539,  in  which  it  is  said:  "As  to  offences  committed 
in  foreign  civilized  lands  the  country  of  arrest  has  jurisdiction 
only  of  offences  distinctively  against  its  sovereignty."  See,  also, 
Dr.  Wharton's  article  upon  the  subject  in  1  Criminal  Law  Maga- 
zine, 715.  As  between  the  States  the  question  is  so  clear  to  us 
that  we  forbear  a  general  discussion  of  the  subject.  We  may 
further  remark  that,  while  it  is  true  that  the  criminal  laws  of  a 
State  can  have  no  extra-territorial  force,  we  are  of  the  opinion 
that  it  is  competent  for  the  legislature  to  determine  what  acta 
within  the  limits  of  the  State  shall  be  deemed  criminal,  and  to 
provide  for  their  punishment.  Certainly,  there  could  be  no  com- 
plaint where  all  the  parties  concerned  in  the  homicide  are  citizens 
of  North  Carolina.  It  may  also  be  observed  that  in  addition  to  its 
common  law  jurisdiction  the  State  of  Tennessee  has  provided  by 
statute  for  the  trial  of  an  offender  under  the  circumstances  of 
this  case. 

For  the  reasons  given  we  are  constrained  to  say  that  the  pri- 
soners are  entitled  to  a  new  trial. 

State  v.  Morrow,  18  8.  E.  853;  Simpson  r.  State,  17  S.  E.  984;  State  r. 
Gessert,  21  Minn.  369;  State  v.  Carter,  27  N.  J.  L.  499;  State  v.  Kelly, 
76  Me.  331;  Green  v.  State,  66  Ala.  40;  State  v.  Ross,  76  N.  C.  242  r 
Rlley  v.  State,  9  Humph.  646;  State  v.  Nyckoff,  2  Vroom.  65;  U.  S.  v. 
Davis,  2  Sunnier  482;  State  v.  Cut  shall,  110  N.  C.  538;  16  L.  R.  A.  130; 
May,  Sec.  79;  Clark,  p.  360;  Bishop,  p.  109;  Wharton,  Sec.  288  et  seq.r 
Hawley  &  McGregor,  p.  68. 

NOTE.— Some  States  hold  that  the  homicide  is  committed  where  the 
death  occurs. 

Bishop  I.,  Sec.  112-116;  Wharton,  Sec.  292;  Hawley  &  McGregor,  p. 
69;  Tyler  v.  People,  8  Mich.  320;  Com.  v.  Macloon,  101  Mass.  1;  U.  S.  t>. 
Guiteau,  47  Am.  Rep.  247;  Clark,  p.  363. 


REGINA  V.  KEYN.  223 


2.    LIMITS  OF  THE  UNITED  STATES. 

The  territorial  limits,  and  hence  the  jurisdiction  of  a 
country  extends  to  its  boundary,  unless  it  is  bounded  by 
the  sea,  when  its  jurisdiction  extends  one  marine  league 
from  low  water  mark.  For  determining  criminal  juris- 
diction, ships  are  deemed  a  part  of  the  territory  of  the 
country  to  which  they  belong. 

KEGINA  v.  KEYN. 
13  Cox  C.  C.  403;  L.  R.  2  Exch.  Div.  63. 

THE  prisoner  was  indicted  at  the  Central  Criminal  Court  for 
the  manslaughter  of  Jessie  Dorcas  Young  on  the  high  seas,  and 
within  the  jurisdiction  of  the  Admiralty  of  England.  The  de- 
ceased was  a  passenger  on  board  the  Strathclyde,  a  British 
steamer  bound  from  London  to  Bombay.  This  vessel,  when  one 
and  nine-tenths  of  a  mile  from  Dover  pier-head,  and  within  two 
and  a  half  miles  from  Dover  beach,  was  run  down  and  sunk  by 
the  Franconia,  a  German  steamer.  In  the  collision,  the  deceased 
woman  was  drowned,  and  the  prisoner,  the  captain  of  the  Fran- 
conia, is  convicted  of  manslaughter;  but  a  question  of  law  is  re- 
served. 

An  objection  was  taken  on  the  part  of  the  prisoner  that, 
inasmuch  as  he  was  a  foreigner,  in  a  foreign  vessel,  on  a  foreign 
voyage,  sailing  upon  the  high  seas,  he  was  not  subject  to  the 
jurisdiction  of  any  court  in  this  country. 

The  crown  contends  that  inasmuch  as,  at  the  time  of  the  col- 
lision, both  vessels  were  within  the  distance  of  three  miles  from 
the  English  shore,  the  offence  was  committed  within  the  realm  of 
England,  and  is  triable  by  the  English  court. 

The  case  was  argued  before  Cockburn,  C.  J.,  Lord  Coleridge, 
C.  J.,  Kelly,  C.  B.,  Sir  R.  Phillimore,  Bramwell,  Pollock,  and 
Amphlett,  B.  B.,  Lush,  Brett  Grove,  Denman,  Archibald, 
Field  and  Lindley,  JJ. 


224  JURISDICTION. 

COCKBURN,  C.  J.  "The  question  is,  whether  the  accused  is 
amenable  to  our  law,  and  whether  there  was  jurisdiction  to  try 
him? 

"The  legality  of  the  conviction  is  contested,  on  the  ground  that 
the  accused  is  a  foreigner;  that  the  Franconia,  the  ship  he  com- 
manded, was  a  foreign  vessel,  sailing  from  a  foreign  port,  bound 
on  a  foreign  voyage;  that  the  alleged  offence  was  committed  on 
the  high  seas.  Under  these  circumstances,  it  is  contended  that 
the  accused,  though  he  may  be  amenable  to  the  law  of  his  own 
country,  is  not  capable  of  being  tried  and  punished  by  the  law  of 
England. 

"The  facts  on  which  this  defence  is  based  are  not  capable  of 
being  disputed ;  but  a  twofold  answer  is  given  on  the  part  of  the 
prosecution: — 1st.  That,  although  the  occurrence  on  which  the 
charge  is  founded  took  place  on  the  high  seas  in  this  sense  that 
the  place  in  which  it  happened  was  not  within  the  body  of  a 
county,  it  occurred  within  three  miles  of  the  English  coast;  that 
by  the  law  of  nations,  the  sea,  for  a  space  of  three  miles  from  the 
coast,  is  part  of  the  territory  of  the  country  to  which  the  coast 
belongs;  that,  consequently,  the  Franconia,  at  the  time  the  of- 
fence was  committed,  was  in  English  waters,  and  those  on  board 
were  therefore  subject  to  English  law. 

"Secondly.  That,  although  the  negligence  of  which  the 
accused  was  guilty  occurred  on  board  a  foreign  vessel,  the  death 
occasioned  by  such  negligence  took  place  on  board  a  British  ves- 
sel ;  and  that,  as  a  British  vessel  is,  in  point  of  law  to  be  considered 
British  territory,  the  offence,  having  been  consummated  by  the 
death  of  the  deceased  in  a  British  ship,  must  be  considered  as 
having  been  committed  on  British  territory.  *  *  * 

"According  to  the  general  law,  a  foreigner  who  is  not  residing 
permanently  or  temporarily  in  British  territory,  or  on  board  a 
British  ship,  cannot  be  held  responsible  for  an  infraction  of  the 
law  of  this  country. 

"Unless,  therefore,  the  accused,  Keyn,  at  the  time  the  offence 
of  which  he  has  been  convicted  was  committed,  was  on  British 
territory  or  on  board  a  British  ship,  he  could  not  be  properly 
brought  to  trial  under  British  law,  in  the  absence  of  express 
legislation.  *  *  * 

''In  the  reign  of  Charles  II.,  Sir  Leoline  Jenkins,  then  the 


KEGINA  V.  KEYN.  225 

judge  of  the  Court  of  Admiralty,  in  a  charge  to  the  grand  jury 
at  an  Admiralty  sessions  at  the  Old  Bailey,  not  only  asserted  the 
king's  sovereignty  within  the  four  seas,  and  that  it  was  his  right 
and  province  'to  keep  the  public  peace  on  these  seas' — that  is, 
as  Sir  Leoline  expounds  it,  'to  preserve  his  subjects  and  allies  in 
their  possessions  and  properties  upon  these  seas,  and  in  all 
freedom  and  security  to  pass  to  and  fro  on  them,  upon  their  law- 
ful occasions,'  but  extended  this  authority  and  jurisdiction  of  the 
king.  'To  preserve  the  public  peace  and  to  maintain  the  freedom 
and  security  of  navigation  all  the  world  over;  so  that  not  the 
utmost  bound  of  the  Atlantic  Ocean,  nor  any  corner  of  the  Medi- 
terranean, nor  any  part  of  the  South  or  other  seas,  but  that  if 
the  peace  of  God  and  the  king  be  violated  upon  any  of  his  sub- 
jects, or  upon  his  allies  or  their  subjects,  and  the  offender  be 
afterwards  brought  up  or  laid  hold  of  in  any  of  His  Majesty's 
ports,  such  breach  of  the  peace  is  to  be  inquired  of  and  tried  in 
virtue  of  a  commission  of  Oyer  and  Terminer  as  this  is,  in  such 
county,  liberty,  or  place  as  His  Majesty  shall  please  to  direct — so 
long  an  arm  hath  God  by  the  laws  given  to  his  vicegerent  the 
king.'  *  *  * 

"Venice,  in  like  manner,  laid  claim  to  the  Adriatic,  Genoa  to 
the  Ligurian  Sea,  Denmark  to  a  portion  of  the  North  Sea. 

"The  Portuguese  claimed  to  bar  the  ocean  route  to  India  and 
the  Indian  Seas  to  the  rest  of  the  World,  while  Spain  made  the 
like  assertion  with  reference  to  the  West. 

"All  these  vain  and  extravagant  pretensions  have  long  since 
given  way  to  the  influence  of  reason  and  common  sense. 

"If,  indeed,  the  sovereignty  thus  asserted  had  a  real  existence, 
and  could  now  be  maintained,  it  would  of  course,  independently 
of  any  question  as  to  the  three-mile  zone,  be  conclusive  of  the 
present  case.  But  the  claim  to  such  sovereignty,  at  all  times 
unfounded,  has  long  since  been  abandoned.  No  one  would  now 
dream  of  asserting  that  the  sovereign  of  these  realms  has  any 
greater  right  over  the  surrounding  seas  than  the  sovereigns  on 
the  opposite  shores;  or  that  it  is  the  especial  duty  and  privilege 
of  the  Queen  of  Great  Britain  to  keep  the  peace  in  these  seas;  or 
that  the  Court  of  Admiralty  could  try  a  foreigner  for  an  offence 
committed  in  a  foreign  vessel  in  all  parts  of  the  Channel. 

"No  writer  of  our  day,  except  Mr.  Chitty  in  his  treatise  on  the 
15 


226  JURISDICTION. 

prerogative,  has  asserted  the  ancient  doctrine.  Blackstone,  in 
his  chapter  on  the  prerogative  in  the  Commentaries,  while  he 
asserts  that  the  narrow  seas  are  part  of  the  realm,  puts  it  only 
on  the  ground  that  the  jurisdiction  of  the  Admiralty  extends 
over  these  seas. 

"He  is  silent  as  to  any  jurisdiction  over  foreigners  within 
them.  The  concensus  of  jurists,  which  has  been  so  much  insisted 
on  as  authority,  is  perfectly  unanimous  as  to  the  non-existence 
of  any  such  jurisdiction.  Indeed,  it  is  because  this  claim  of  sov- 
ereignty is  admitted  to  be  untenable  that  it  has  been  found 
necessary  to  resort  to  the  theory  of  the  three-mile  zone. 

"It  is  in  vain,  therefore,  that  the  ancient  assertion  of  sov- 
ereignty over  the  narrow  seas  is  invoked  to  give  countenance  to 
the  rule  now  sought  to  be  established,  of  jurisdiction  over  the 
three-mile  zone. 

"If  this  rule  is  to  prevail,  it  must  be  on  altogether  different 
grounds.  To  invoke,  as  its  foundation  or  in  its  support,  an  asser- 
tion of  sovereignty  which,  for  all  practical  purposes,  is,  and 
always  has  been,  idle  and  unfounded,  and  the  invalidity  of  which 
renders  it  necessary  to  have  recourse  to  the  new  doctrine,  in- 
volves an  inconsistency,  on  which  it  would  be  superfluous  to 
dwell.  I  must  confess  myself  unable  to  comprehend  how,  when 
the  ancient  doctrine  as  to  sovereignty  over  the  narrow  seas  is 
adduced,  its  operation  can  be  confined  to  the  three-mile  zone.  If 
the  argument  is  good  for  anything,  it  must  apply  to  the  whole 
of  the  surrounding  seas.  But  the  counsel  for  the  crown  evidently 
shrank  from  applying  it  to  this  extent.  Such  a  pretension  would 
not  be  admitted  or  endured  by  foreign  nations.  That  it  is  out  of 
this  extravagant  assertion  of  sovereignty  that  the  doctrine  of  the 
three-mile  jurisdiction,  asserted  on  the  part  of  the  crown,  and 
which,  the  older  claim  being  necessarily  abandoned,  we  are  now 
called  upon  to  consider,  has  sprung  up,  I  readily  admit.  *  *  * 

"With  the  celebrated  work  of  Grotius,  published  in  1609, 
began  the  great  contest  of  the  jurists  as  to  the  freedom  of  the 
seas. 

"The  controversy  ended,  as  controversies  often  do,  in  a 
species  of  compromise.  "While  maintaining  the  freedom  of  the 
seas,  Grotius,  in  his  work  De  Jure  Belli  et  Pads,  had  expressed 
an  opinion  that,  while  no  right  could  be  acquired  to  the  exclusive 


REGINA  V.  KEYN.  227 

possession  of  the  ocean,  an  exclusive  right  or  jurisdiction  might 
be  acquired  in  respect  of  particular  portions  of  the  sea  adjoining, 
the  territory  of  individual  states.  *  *  * 

"Other  writers  adopted  a  similar  principle,  but  with  very  vary- 
ing views  as  to  the  extent  to  which  the  right  might  be  exercised. 
Albericus  Gentiles  extended  it  to  100  miles;  Baldus  and  Bodinus 
to  sixty. 

"Loccenius  (De  Jure  Maritime,  ch.  iv.,  s.  6)  puts  it  at  two 
days'  sail ;  another  writer  makes  it  extend  as  far  as  could  be  seen 
from  the  shore.  Valin,  in  his  Commentary  on  the  French  Ordi- 
nances of  1681  (ch.  v.),  would  have  it  reach  as  far  as  bottom 
could  be  found  with  the  lead  line.  *  *  * 

"Differing  altogether  from  these  writers  as  to  the  extent  o£ 
maritime  sovereignty,  Bynkershoek,  an  advocate,  like  Grotiusy 
for  the  mare  liberum,  and  who  entered  the  lists  against  Seldenj 
as  to  the  dominion  of  England  in  the  so-called  English  Sea,  in  hia 
treatise  De  Dominio  Maris,  published  in  1702,  follows  up  the 
idea  of  Grotius  as  to  a  limited  dominion  of  the  sea  from  the 
shore.  *  *  * 

"After  combating  the  doctrine  of  a  mare  clausum  as  regards- 
the  sea  at  large,  and  enumerating  these  inconsistent  opinions, 
which  he  seems  little  disposed  to  respect,  Bynkershoek  continues : 
'Hinc  videas  priscos  juris  magistros,  qui  dominium  in  mare- 
proximum  ausi  sunt  agnoscere,  in  regundis  ejus  finibus  admodum 
vagari  incertos.'  'Quare  omnino  videtur  rectius,'  he  adds,  after 
disposing  of  the  foregoing  opinions,  'Eo  potestatem  terrae  ex- 
tendi,  quousque  tormenta  exploduntur;  eatenus  quippe,  cum  im- 
perare,  turn  possidere  videmur.  Loquor  autem  de  his  temporibus;, 
quibus  illis  machinis  utimur;  alioquin  generaliter  deceudum 
esset,  potestatem  teme  finiri,  ubi  finitur  armorum  vis;  etenim' 
haec,  ut  diximus,  possessionem  tuetur.' 

"We  have  here,  for  the  first  time,  so  far  as  I  am  aware,  a  sug- 
gestion as  to  a  territorial  dominion  over  the  sea,  extending  as  far 
as  cannon-shot  would  reach — a  distance  which  succeeding  writers 
fixed  at  a  marine  league,  or  three  miles.  Prior  to  this,  no  one 
had  suggested  such  a  limit. 

"The  jurisdiction,  assumed  in  the  Admiralty  commissions,  or 
exercised  by  the  Court  of  King's  Bench  in  the  time  of  the 
Edwards,  was  founded  on  the  king's  alleged  sovereignty  over  the 


228  JURISDICTION. 

whole  of  the  narrow  seas;  it  had  no  reference  whatever  to  any 
notion  of  a  territorial  sea.  To  English  lawyers  the  idea  of  this 
limited  jurisdiction  was  utterly  unknown. 

"With  Selden  and  Hale,  they  stood  up  stoutly  for  the  king's 
undivided  dominion  over  the  four  seas.  No  English  author  makes 
any  distinction,  as  regards  the  dominion  of  the  crown,  between 
the  narrow  seas  as  a  whole  and  any  portion  of  them  as  adjacent 
to  the  shore.  The  doctrine  was  equally  unknown  to  the  Scotch 
lawyers.  *  *  * 

"Even  to  our  times  the  doctrine  of  the  three-mile  zone  has 
never  been  adopted  by  the  writers  on  English  law.  To  Black- 
stone  who,  in  his  Commentaries,  treats  of  the  sea  with  reference 
to  the  prerogative,  as  also  to  his  modern  editor,  Mr.  Stephen,  it  is 
unknown;  equally  so  to  Mr.  Chitty,  whose  work  on  the  preroga- 
tive is  of  the  present  century.  It  was  not  till  the  beginning  of 
this  century  that  any  mention  of  such  a  doctrine  occurs  in  the 
courts  of  this  country.  But  to  the  continental  jurists,  the  sug- 
gestion of  Bynkershoek  seemed  a  happy,  solution  of  the  great 
controversy  as  to  the  freedom  of  the  sea;  and  the  formula, 
potestas  finitur  ubi  finitur  armorum  vis,  was  a  taking  one;  and 
succeeding  publicists  adopted  and  repeated  the  rule  which  their 
predecessor  had  laid  down,  without  much  troubling  themselves 
to  ascertain  or  inquire  whether  that  rule  had  been  recognized 
and  adopted  by  the  maritime  nations  who  were  to  be  affected 
by  it.  *  *  * 

"But  to  what,  after  all,  do  these  ancient  authorities  amount? 
Of  what  avail  are  they  toward  establishing  that  the  soil  in  the 
three-mile  zone  is  part  of  the  territorial  domain  of  the  crown? 
These  assertions  of  sovereignty  were  manifestly  based  on  the 
doctrine  that  the  narrow  seas  are  part  of  the  realm  of  England. 
But  that  doctrine  is  now  exploded.  Who  at  this  day  would 
venture  to  affirm  that  the  sovereignty  thus  asserted  in  those  times 
now  exists?  What  English  lawyer  is  there  who  would  not  shrink 
from  maintaining — what  foreign  jurists  who  would  not  deny — 
what  foreign  government  which  would  not  repel  such  a  pre- 
tension? I  listened  carefully  to  see  whether  such  an  assertion 
would  be  made;  but  none  was  made.  No  one  has  gone  the  length 
of  suggesting,  much  less  of  openly  asserting,  that  the  jurisdiction 
still  exists.  It  seems  to  me,  that  when  the  sovereignty  and  juris- 


REGINA   V.  KEYN.  229 

diction  from  which  the  property  in  the  soil  of  the  sea  was  inferred 
is  gone,  the  territorial  property  which  was  suggested  to  be  con- 
sequent upon  it,  must  necessarily  go  with  it.  *  *  * 

"It  thus  appearing,  as  it  seems  to  me  that  the  littoral  sea 
beyond  low-water  mark  did  not,  as  distinguished  from  the  rest 
of  the  high  seas,  originally  form  part  of  the  territory  of  the 
realm,  the  question  again  presents  itself,  when  and  how  did  it 
become  so?  Can  a  portion  of  that  which  was  before  high  sea 
have  been  converted  into  British  territory,  without  any  action  on 
the  part  of  the  British  government  or  legislature — by  the  mere 
assertions  of  writers  on  public  law — or  even  by  the  assent  of 
other  nations? 

"And  when  in  support  of  this  position,  or  of  the  theory  of  the 
three-mile  zone  in  general,  the  statements  of  the  writers  on  inter- 
national law  are  relied  on,  the  question  may  well  be  asked,  upon 
what  authority  are  these  statements  founded? 

"When  and  in  what  manner  have  the  nations,  who  are  to  be 
affected  by  such  a  rule  as  these  writers,  following  one  another, 
have  laid  down,  signified  their  assent  to  it?  to  say  nothing  of  tne 
difficulty  which  might  be  found  in  saying  to  which  of  these  con- 
flicting opinions  such  assent  had  been  given. 

"For,  even  if  entire  unanimity  had  existed  in  respect  of  the  im- 
portant particulars  to  which  I  have  referred,  in  place  of  so  much 
discrepancy  of  opinion,  the  question  would  still  remain,  how  far 
the  law  as  stated  by  the  publicists  had  received  the  assent  of  the 
civilized  nations  of  the  world. 

"For  writers  on  international  law,  however  valuable  their 
labors  may  be  in  elucidating  and  ascertaining  the  principles  and 
rules  of  law,  cannot  make  the  law.  To  be  binding,  the  law  must 
have  received  the  assent  of  the  nations  who  are  to  be  bound  by  it. 
This  assent  may  be  express,  as  by  treaty  or  the  acknowledged 
concurrence  of  governments,  or  may  be  implied  from  established 
usage, — an  instance  of  which  is  to  be  found  in  the  fact  that 
merchant  vessels  on  the  high  seas  are  held  to  be  subject  only 
to  the  law  of  the  nation  under  whose  flag  they  sail,  while  in  the 
ports  of  a  foreign  state  they  are  subject  to  the  local  law  as  well 
as  to  that  of  their  own  country.  In  the  absence  of  proof  of  as- 
sent, as  derived  from  one  or  other  of  these  sources,  no  unanimity 
on  the  part  of  theoretical  writers  would  warrant  the  judicial  ap- 


230  JURISDICTION. 

plication  of  the  law  on  the  sole  authority  of  their  views  or  state- 
ments. Nor,  in  my  opinion,  would  the  clearest  proof  of  unani- 
mous assent  on  the  part  of  other  nations  be  sufficient  to  author- 
ize the  tribunals  of  this  country  to  apply,  without  an  act  of 
Parliament,  what  would  practically  amount  to  a  new  law.  In  so 
doing  we  should  be  unjustifiably  usurping  the  province  of  the 
legislature.  The  assent  of  nations  is  doubtless  sufficient  to  give 
the  power  of  parliamentary  legislation  in  a  matter  otherwise 
within  the  sphere  of  international  law,  but  it  would  be  power- 
less to  confer  without  such  legislation  a  jurisdiction  beyond  and 
unknown  to  the  law,  such  as  that  now  insisted  on,  a  jurisdiction 
over  foreigners  in  foreign  ships  on  a  portion  of  the  high  seas. 

"When  I  am  told  that  all  other  nations  have  assented  to  such 
an  absolute  dominion  on  the  part  of  the  littoral  state,  over  this 
portion  of  the  sea,  as  that  their  ships  may  be  excluded  from  it, 
and  that,  without  any  open  legislation,  or  notice  to  them  or  their 
subjects,  the  latter  may  be  held  liable  to  the  local  law,  I  ask  first 
what  proof  there  is  of  such  assent  as  here  asserted ;  and,  secondly, 
to  what  extent  has  such  assent  been  carried ;  a  question  of  infinite 
importance,  when  undirected  by  legislation,  we  are  called  upon 
to  apply  the  law  on  the  strength  of  such  assent.  It  is  said  that  we 
are  to  take  the  statements  of  the  publicists  as  conclusive  proof  of 
the  assent  in  question,  and  much  has  been  said  to  impress  on  us 
the  respect  which  is  due  to  their  authority,  and  that  they  are  to 
be  looked  upon  as  witnesses  of  the  facts  to  which  they  speak, 
witnesses  whose  statements,  or  the  foundation  on  which  those 
statements  rest,  we  are  scarcely  at  liberty  to  question.  I  demur 
altogether  to  this  position.  I  entertain  a  profound  respect  for  the 
opinion  of  jurists  when  dealing  with  the  matters  of  judicial  prin- 
ciple and  opinion,  but  we  are  here  dealing  with  a  question  not  of 
opinion  but  of  fact,  and  I  must  assert  my  entire  liberty  to 
examine  the  evidence  and  see  upon  what  foundation  these  state- 
ments are  based. 

"The  question  is  not  one  of  theoretical  opinion,  but  of  fact, 
and,  fortunately,  the  writers  upon  whose  statements  we  are  called 
upon  to  act  have  afforded  us  the  means  of  testing  those  state- 
ments by  reference  to  facts.  They  refer  us  to  two  things,  and  to 
these  alone — treaties  and  usage. 

"Let  us  look  a  little  more  closely  into  both. 


REGINA  V.  KEYN.  231 

'Tirst,  then,  let  us  see  how  the  matter  stands,  as  regards 
treaties.  It  may  be  asserted,  without  fear  of  contradiction,  that 
the  rule  that  the  sea  surrounding  the  coast  is  to  be  treated  as  a 
part  of  the  adjacent  territory,  so  that  the  state  shall  have  ex- 
clusive dominion  over  it,  and  that  the  law  of  the  latter  shall  be 
generally  applicable  to  those  passing  over  it  in  the  ships  of  other 
nations,  has  never  been  made  the  subject  matter  of  any  treaty, 
or,  as  matter  of  acknowledged  right,  has  formed  the  basis  of  any 
treaty,  or  has  ever  been  the  subject  of  Diplomatic  discussion.  It 
has  been  entirely  the  creation  of  the  writers  on  international  law. 
It  is  true  that  the  writers  who  have  been  cited,  constantly  refer 
to  treaties  in  support  of  the  doctrine  they  assert.  But  when  the 
treaties  they  refer  to  are  looked  at,  they  will  be  found  to  relate 
to  two  subjects  only — the  observance  of  the  rights  and  obliga- 
tions of  neutrality,  and  the  exclusive  right  of  fishing.  In  fixing 
the  limits  to  which  these  rights  should  extend,  nations  have  so 
far  followed  the  writers  on  international  law  as  to  adopt  the  three 
miles  range  as  a  convenient  distance.  There  are  several  treaties 
by  which  nations  have  engaged,  in  the  event  of  either  of  them 
being  at  war  with  a  third,  to  treat  the  sea  within  three  miles  of 
each  other's  coasts  as  neutral  territory,  within  which  no  warlike 
operations  should  be  carried  on;  instances  of  which  will  be  found 
in  the  various  treatises  on  international  law.  Thus  for  instance, 
in  the  treaties  of  commerce,  between  Great  Britain  and  France, 
of  September,  1786;  between  France  and  Russia,  of  January, 
1787;  between  Great  Britain  and  the  United  States,  of  October, 
1794,  each  contracting  party  engages,  if  at  war  with  any  other 
nation,  not  to  carry  on  hostilities  within  cannon  shot  of  the  coast 
of  the  other  contracting  party;  or,  if  the  other  should  be  at  war, 
not  to  allow  its  vessels  to  be  captured  within  the  like  distance. 
There  are  many  other  treaties  of  the  like  tenor,  a  list  of  which  is 
given  by  Azuni  (vol.  II,  p.  78) ;  and  various  ordinances  and  laws 
have  been  made  by  the  different  states  in  order  to  give  effect  to 
them. 

"Again,  nations,  possessing  opposite  or  neighboring  coasts, 
bordering  on  a  common  sea,  have  sometimes  found  it  expedient 
to  agree  that  the  subjects  of  each  shall  exercise  an  exclusive  right 
of  fishing  to  a  given  distance  from  their  own  shores,  and  here 
also  have  accepted  the  three  miles  as  a  convenient  distance. 


232  JURISDICTION. 

Such,  for  instance,  are  the  treaties  made  between  this  country 
and  the  United  States,  in  relation  to  the  fishery  off  the  coast  of 
Newfoundland,  and  those  between  this  country  and  France,  in 
relation  to  the  fishery  on  their  respective  shores;  and  local  laws 
have  been  passed  to  give  effect  to  these  engagements. 

"But  in  all  these  treaties  this  distance  is  adopted,  not  as 
matter  of  existing  right  established  by  the  general  law  of  nations, 
but  as  matter  of  mutual  concession  and  convention.  Instead  of 
upholding  the  doctrine  contended  for,  the  fact  of  these  treaties 
having  been  entered  into  has  rather  the  opposite  tendency;  for 
it  is  obvious  that,  if  the  territorial  right  of  a  nation  bordering  on 
the  sea  to  this  portion  of  the  adjacent  waters  had  been  established 
by  the  common  assent  of  nations,  these  treaty  arrangements 
would  have  been  wholly  superfluous. 

"Each  nation  would  have  been  bound,  independently  of  treaty 
engagement,  to  respect  the  neutrality  of  the  other  in  these 
waters  as  much  as  in  its  inland  waters.  The  foreigner  invading 
the  rights  of  the  local  fisherman  would  have  been  amenable,  con- 
sistently with  international  law,  to  local  legislation  prohibiting 
such  infringement,  without  any  stipulation  to  that  effect  by 
treaty.  For  what  object,  then,  have  treaties  been  resorted  to? 
Manifestly  in  order  to  obviate  all  questions  as  to  concurrent  or 
conflicting  rights  arising  under  the  law  of  nations. 

"Possibly,  after  these  precedents  and  all  that  has  been  written 
on  this  subject,  it  may  not  be  too  much  to  say  that,  independently 
of  treaty,  the  three-mile  belt  of  sea  might  at  this  day  be  taken 
as  belonging  for  these  purposes,  to  the  local  state. 

"But  it  is  scarcely  logical  to  infer,  from  such  treaties  alone, 
that,  because  nations  have  agreed  to  treat  the  littoral  sea  as  be- 
longing to  the  country  it  adjoins,  for  certain  specified  objects, 
they  have  therefore  assented  to  forego  all  other  rights  previously 
enjoyed  in  common,  and  have  submitted  themselves,  even  to  the 
extent  of  the  right  of  navigation  on  a  portion  of  the  high  seas, 
and  the  liability  of  their  subjects  therein  to  the  criminal  law,  to 
the  will  of  the  local  sovereign,  and  the  jurisdiction  of  the  local 
state.  Equally  illogical  is  it,  as  it  seems  to  me,  from  the  adoption 
of  the  three-mile  distance  in  these  particular  instances,  to  assume, 
independently  of  everything  else,  a  recognition,  by  the  common 
assent  of  nations,  of  the  principle  that  the  subjects  of  one  state 


REGINA  V.  KEYN.  233 

passing  in  ships  within  three  miles  of  the  coast  of  another,  shall 
be  in  all  respects  subject  to  the  law  of  the  latter.  It  may  be  that  the 
maritime  nations  of  the  world  are  prepared  to  acquiesce  in  the 
appropriation  of  the  littoral  sea;  but  I  cannot  think  that  these 
treaties  help  us  much  toward  arriving  at  the  conclusion  that  this 
appropriation  has  actually  taken  place.  At  all  events,  the  ques- 
tion remains,  whether  judicially  we  can  infer  that  the  nations 
who  have  been  parties  to  these  treaties,  and,  still  further,  those 
who  have  not,  have  thereby  assented  to  the  application  of  the 
criminal  law  of  other  nations  to  their  subjects  on  the  waters  in 
question,  and  on  the  strength  of  such  inference  so  apply  the 
criminal  law  of  this  country. 

"The  uncertainty  in  which  we  are  left,  so  far  as  judicial 
knowledge  is  concerned,  as  to  the  extent  of  such  assent,  likewise 
presents,  I  think,  a  very  serious  obstacle  to  our  assuming  the 
jurisdiction  we  are  called  upon  to  exercise,  independently  of  the, 
to  my  mind,  still  more  serious  difficulty,  that  we  should  be  as- 
suming it  without  legislative  warrant. 

"So  much  for  treaties.  Then  how  stands  the  matter  as  to  usage, 
to  which  reference  is  so  frequently  made  by  the  publicists  in  sup- 
port of  their  doctrine? 

"When  the  matter  is  looked  into,  the  only  usage  found  to  exist 
is  such  as  is  connected  with  navigation,  or  with  revenue,  local 
fisheries,  or  neutrality,  and  it  is  to  these  alone  that  the  usage 
relied  on  is  confined.  Usage  as  to  the  application  of  the  general 
law  of  the  local  state  to  foreigners  on  the  littoral  sea,  there  is 
actually  none.  No  nation  has  arrogated  to  itself  the  right  of  ex- 
cluding foreign  vessels  from  the  use  of  its  external  littoral  waters 
for  the  purpose  of  navigation,  or  has  assumed  the  power  of  mak- 
ing foreigners  in  foreign  ships  passing  through  these  waters  sub- 
ject to  its  law,  otherwise  than  in  respect  of  the  matters  to  which 
I  have  just  referred.  Nor  have  the  tribunals  of  any  nation  held 
foreigners  in  these  waters  amenable  generally  to  the  local  crimi- 
nal law  in  respect  of  offences.  It  is  for  the  first  time  in  the  annals 
of  jurisprudence  that  a  court  of  justice  is  now  called  upon  to 
apply  the  criminal  law  of  the  country  to  such  a  case  as  the  pres- 
ent. 

"It  may  well  be,  I  say  again,  that — after  all  that  has  been  said 
and  done  in  this  respect — after  the  instances  which  have  been 


234  JURISDICTION. 

mentioned  of  the  adoption  of  the  three-mile  distance,  and  the 
repeated  assertion  of  this  doctrine  by  the  writers  on  public  law, 
a  nation  which  should  now  deal  with  this  portion  of  the  sea  as  its 
own,  so  as  to  make  foreigners  within  it  subject  to  its  law,  for  the 
prevention  and  punishment  of  offences,  would  not  be  considered 
as  infringing  the  rights  of  other  nations.  But  I  apprehend  that  as 
the  ability  so  to  deal  with  these  waters  would  result,  not  from 
any  original  or  inherent  right,  but,  from  the  acquiescence  of 
other  states,  some  outward  manifestation  of  the  national  will,  in 
the  shape  of  open  practice  or  municipal  legislation,  so  as  to 
amount,  at  least  constructively,  to  an  occupation  of  that  which 
was  before  unappropriated,  would  be  necessary  to  render  the 
foreigner,  not  previously  amenable  to  our  general  law,  subject  to 
its  control. 

"That  such  legislation,  whether  consistent  with  the  general 
law  of  nations  or  not,  would  be  binding  on  the  tribunals  of  this 
country — leaving  the  question  of  its  consistency  with  interna- 
tional law  to  be  determined  between  the  governments  of  the 
respective  nations — can  of  course  admit  of  no  doubt.  The  ques- 
tion is  whether  such  legislation  would  not,  at  all  events,  be  neces- 
sary to  justify  our  courts  in  applying  the  law  of  this  country  to 
foreigners  under  entirely  novel  circumstances  in  which  it  has 
never  been  applied  before.  *  *  * 

"It  is  unnecessary  to  the  defence,  and  equally  so  to  the  de- 
cision of  the  case,  to  determine  whether  Parliament  has  the  right 
to  treat  the  three-mile  zone  as  part  of  the  realm  consistently 
with  international  law. 

"That  is  a  matter  on  which  it  is  for  Parliament  itself  to  decide. 
It  is  enough  for  us  that  it  has,  so  far  as  to  be  binding  upon  us, 
the  power  to  do  so.  The  question  is  whether,  acting  judicially, 
we  can  treat  the  power  of  Parliament  to  legislate  as  making  up 
for  the  absence  of  actual  legislation. 

"I  am  clearly  of  opinion  that  we  cannot,  and  that  it  is  only  in 
the  instance  in  which  foreigners  on  the  sea  have  been  made  spe- 
cifically liable  to  our  law  by  statutory  enactment  that  that  law 
can  be  applied  to  them.  *  *  * 

"Hitherto,  legislation,  so  far  as  relates  to  foreigners  in  foreign 
ships  in  this  part  of  the  sea,  has  been  confined  to  the  maintenance 
of  neutral  rights  and  obligations,  the  prevention  of  breaches  of 


KEGINA  V.   KEYF.  235 

the  revenue  and  fishery  laws,  and,  under  particular  circum- 
stances, to  cases  of  collision. 

"In  the  two  first  legislation  is  altogether  irrespective  of  the 
three-mile  distance,  being  founded  on  a  totally  different  prin- 
ciple, namely,  the  right  of  a  state  to  take  all  necessary  measures 
for  the  protection  of  its  territory  and  rights,  and  the  prevention 
of  any  breach  of  its  revenue  laws.  *  *  * 

"It  is  apparent  that,  with  the  exception  of  the  penalties  im- 
posed for  violation  of  neutral  duties  or  breaches  of  the  revenue 
or  fishery  laws,  there  has  been  no  assertion  of  legislative  authority 
in  the  general  application  of  the  penal  law  to  foreigners  within 
the  three-mile  zone.  The  legislature  has  omitted  to  adopt  the 
alleged  sovereignty  over  the  littoral  sea,  to  the  extent  of  making 
our  penal  law  applicable  generally  to  foreigners  passing  through 
it  for  the  purpose  of  navigation.  Can  a  court  of  justice  take  upon 
itself,  in  such  a  matter,  to  do  what  the  legislature  has  not  thought 
fit  to  do — that  is,  make  the  whole  body  of  our  penal  law  applic- 
able to  foreign  vessels  within  three  miles  of  our  coast? 

"It  is  further  apparent  from  these  instances  of  specific  legisla- 
tion that,  when  ascertaining  its  power  to  legislate  with  reference 
to  the  foreigner  within  the  three-mile  zone,  Parliament  has 
deemed  it  necessary,  wherever  it  was  thought  right  to  subject 
him  to  our  law,expressly  to  enact  that  he  should  be  so.  We  must 
take  this,  I  think,  as  an  exposition  of  the  opinion  of  Parliament 
that  specific  legislation  is  here  necessary,  and  consequently,  that 
without  it  the  foreigner  in  a  foreign  vessel  will  not  come  within 
the  general  law  of  this  country  in  respect  of  matters  arising  on 
the  sea. 

"Legislation,  in  relation  to  foreign  ships  coming  into  British 
ports  and  waters,  rests  on  a  totally  different  principle,  as  was  well 
explained  by  Dr.  Lushington,  in  the  case  of  The  Annapolis. 
(Lush.  Adm.  295.) 

"  The  Parliament  of  Great  Britain  it  is  true,'  says  Dr.  Lush- 
ington, 'has  not,  according  to  the  principles  of  public  law,  any 
authority  to  legislate  for  foreign  vessels  on  the  high  seas,  or  for 
foreigners  out  of  the  limits  of  British  jurisdiction;  though,  if 
Parliament  thought  fit  so  to  do,  this  court,  in  its  instance  juris- 
diction at  least,  would  be  bound  to  obey.  In  cases  admitting  of 
doubt,  the  presumption  would  be  that  Parliament  intended  to 


236  JURISDICTION. 

legislate  without  violating  any  rule  of  international  law,  and  the 
construction  has  been  accordingly. 

"  'Within,  however,  British  jurisdiction,  namely,  within  Brit- 
ish territory,  and  at  sea  within  three  miles  from  the  coast,  and 
within  all  British  rivers  intra  fauces,  and  over  foreigners  in 
British  ships,  I  apprehend  that  the  British  Parliament  has  an  un- 
doubted right  to  legislate.  I  am  further  of  opinion  that  Parlia- 
ment has  a  perfect  right  to  say  to  foreign  ships  that  they  shall 
not,  without  complying  with  British  law,  enter  into  British  ports, 
and  that  if  they  do  enter  they  shall  be  subject  to  penalties,  unless 
they  have  previously  complied  with  the  requisitions  ordained  by  the 
British  Parliament  whether  those  requisitions  be,  as  in  former 
times,  certificates  of  origin,  or  clearance  of  any  description  from 
a  foreign  port,  or  clean  bills  of  health,  or  the  taking  on  board  a 
pilot  at  any  place  in  or  out  of  British  jurisdiction  before  entering 
British  waters. 

u  'Whether  the  Parliament  has  so  legislated  is  now  the  ques- 
tion to  be  considered.'  *  *  * 

"In  the  result,  looking  to  the  fact  that  all  pretension  to  sov- 
ereignty or  jurisdiction  over  foreign  ships  in  the  narrow  seas  has 
long  since  been  wholly  abandoned — to  the  uncertainty  which  at' 
taches  to  the  doctrine  of  the  publicists  as  to  the  degree  of  sover- 
eignty and  jurisdiction  which  may  be  exercised  on  the  so-called 
territorial  sea — to  the  fact  that  the  right  of  absolute  sovereignty 
therein,  and  of  penal  jurisdiction  over  the  subjects  of  other  states, 
has  never  been  expressly  asserted  or  conceded  among  independ- 
ent nations,  or,  in  practice,  exercised,  and  acquiesced  in,  except 
for  violation  of  neutrality  or  breach  of  revenue  or  fishery  laws, 
which,  as  has  been  pointed  out,  stand  on  a  different  footing  as 
well  as  to  the  fact  that,  neither  in  legislating  with  reference  to 
shipping,  nor  in  respect  of  the  criminal  law,  has  Parliament 
thought  proper  to  assume  territorial  sovereignty  over  the  three- 
mile  zone,  so  as  to  enact  that  all  offences  committed  upon  it,  by 
foreigners  in  foreign  ships,  should  be  within  the  criminal  law  of 
this  country,  but,  on  the  contrary,  wherever  it  was  thought  right 
to  make  the  foreigner  amenable  to  our  law,  has  done  so  by  ex- 
press and  specific  legislation.  I  cannot  think  that,  in  the  absence 
of  all  precedent,  and  of  any  judicial  decision  or  authority  applic- 
able to  the  present  purpose,  we  should  be  justified  in  holding  an 


REGINA  V.  KEYN.  237 

offence,  committed  under  such  circumstances,  to  be  punishable 
by  the  law  of  England,  especially  as  in  so  holding  we  must  de- 
clare the  whole  body  of  our  penal  law  to  be  applicable  to  the 
foreigner  passing  our  shores  in  a  foreign  vessel  on  his  way  to  a 
foreign  port.  *  *  * 

"Having  arrived  at  this  conclusion,  it  becomes  necessary  to 
consider  the  second  point  taken  on  the  part  of  the  crown,  namely, 
that  though  the  negligence  of  which  the  accused  was  guilty  oc- 
curred on  board  a  foreign  ship,  yet,  the  death  having  taken  place 
on  board  a  British  ship,  the  offence  was  committed  within  the 
jurisdiction  of  a  British  court  of  justice.  *  *  * 

"The  question  is — and  this  appears  to  me  to  have  been  lost 
sight  of  in  the  argument — not  whether  the  death  of  the  deceased, 
which  no  doubt  took  place  in  a  British  ship,  was  the  act  of  the 
•defendant  in  such  ship,  but  whether  the  defendant,  at  the  time 
the  act  was  done,  was  himself  within  British  jurisdiction. 

"But  in  point  of  fact,  the  defendant  was,  at  the  time  of  the  oc- 
currence, not  on  board  the  British  ship,  the  Strathclyde,  but  on  a 
foreign  ship,  the  Franconia.  *  *  * 

"But  in  order  to  render  a  foreigner  liable  to  the  local  law, 
he  must,  at  the  time  the  offence  was  committed,  have  been  within 
British  territory  if  on  land,  or  in  a  British  ship  if  at  sea.  I  cannot 
think  that  if  two  ships  of  different  nations  met  on  the  ocean,  and 
a  person  on  board  of  one  of  them  were  killed  or  wounded  by  a 
shot  fired  from  the  other,  the  person  firing  it  would  be  amenable 
to  the  law  of  the  ship  in  which  the  shot  took  effect." 

LUSH,  J.,  said,  in  part:  "In  the  reign  of  Richard  II. ,  the  realm 
consisted  of  the  land  within  the  body  of  the  counties.  All  beyond 
low-water  mark  was  part  of  the  high  seas. 

"At  that  period  the  three-mile  radius  had  not  been  thought  of. 
International  law,  which,  upon  this  subject  at  least,  has  grown  up 
since  that  period,  cannot  enlarge  the  area  of  our  municipal  law, 
nor  could  treaties  with  all  the  nations  of  the  world  have  that 
effect.  That  can  only  be  done  by  act  of  Parliament.  As  no  such 
act  has  been  passed,  it  follows  that  what  was  out  of  the  realm 
then  is  out  of  the  realm  now,  and  what  was  part  of  the  high  seas 
then  is  part  of  the  high  seas  now;  and  upon  the  high  seas 
the  Admiralty  jurisdiction  was  confined  to  British  ships.  There- 


238  JURISDICTION. 

fore,  although,  as  between  nation  and  nation,  these  waters  are 
British  territory,  as  being  under  the  exclusive  dominion  of  Great 
Britain,  in  judicial  language  they  are  out  of  the  realm,  and  any 
exercise  of  criminal  jurisdiction  over  a  foreign  ship  in  these 
waters  must  in  my  judgment  be  authorized  by  an  act  of  Parlia- 
ment." 

LORD  COLERIDGE,  C.  J.,  dissenting  from  the  opinion  of  the 
majority,  said,  in  part  *  *  *  "But,  first,  I  think  the  offence 
was  committed  within  the  realm  of  England;  and  if  so,  there  was 
jurisdiction  to  try  it.  *  *  * 

''Now  the  offence  was  committed  much  nearer  to  the  line  of 
low-water  mark  than  three  miles;  and  therefore,  in  my  opinion, 
upon  English  territory.  I  pass  by  for  the  moment  the  question 
of  the  exact  limit  of  the  realm  of  England  beyond  low-watermark, 
I  am  of  opinion  that  it  does  go  beyond  low- water  mark ;  and  if  it 
does,  no  limit  has  ever  been  suggested  which  would  exclude  from 
the  realm  the  place  where  this  offence  was  committed.  But  for 
the  difference  of  opinion  of  the  bench,  and  for  the  great  defer- 
ence which  is  due  to  those  who  differ  from  me,  I  should  have 
said  it  was  impossible  to  hold  that  England  ended  with  low-water 
mark.  I  do  not  of  course  forget  that  it  is  freely  admitted  to  be 
within  the  competency  of  Parliament  to  extend  the  realm  how 
far  soever  it  pleases  to  extend  it  by  enactments,  at  least  so  as  to 
bind  the  tribunals  of  the  country;  and  I  admit  equally  freely  that 
no  statute  has  in  plain  terms,  or  by  definite  limits,  so  extended  it. 

"But,  in  my  judgment,  no  Act  of  Parliament  was  required. 
The  proposition  contended  for,  as  I  understand,  is  that  for  any 
act  of  violence  committed  by  a  foreigner  upon  an  English  subject 
within  a  few  feet  of  low-water  mark,  unless  it  happens  on  board 
a  British  ship,  the  foreigner  cannot  be  tried,  and  is  dispunish- 
able.  *  *  * 

"By  a  consensus  of  writers,  without  one  single  authority  to  the 
contrary,  some  portion  of  the  coast-waters  of  a  country  is  con- 
sidered for  some  purposes  to  belong  to  the  country  the  coasts  of 
which  they  wash.  *  *  * 

"This  is  established  as  solidly,  as,  by  the  very  nature  of  the 
case,  any  proposition  of  international  law  can  be.  Strictly  speak- 
ing, international  law  is  an  inexact  expression  and  it  is  apt  to 


SEGINA  V.  KEYN.  239 

mislead  if  its  inexactness  is  not  kept  in  mind.  Law  implies  a 
law-giver,  and  a  tribunal  capable  of  enforcing  it  and  coercing  its 
transgressors. 

"But  there  is  no  common  law-giver  to  sovereign  states  and  no 
tribunal  has  the  power  to  bind  them  by  decrees  or  coerce  them  if 
they  transgress.  The  law  of  nations  is  that  collection  of  usages 
which  civilized  states  have  agreed  to  observe  in  their  dealings 
with  one  another.  What  these  usages  are,  whether  a  particular 
one  has  or  has  not  been  agreed  to,  must  be  matter  of  evidence. 
Treaties  and  acts  of  state  are  but  evidence  of  the  agreement  of 
nations,  and  do  not  in  this  county  at  least  per  se  bind  the  tribu- 
nals. Neither,  certainly  does  a  consensus  of  jurists;  but  it  is 
evidence  of  the  agreement  of  nations  on  international  points; 
and  on  such  points,  when  they  arise,  the  English  courts  give  ef- 
fect, as  part  of  English  law,  to  such  agreement.  *  *  * 

"We  find  a  number  of  men  of  education,  of  many  different 
nations,  most  of  them  uninterested  in  maintaining  any  particu- 
lar thesis  as  to  the  matter  now  in  question,  agreeing  generally  for 
nearly  three  centuries  in  the  proposition  that  the  territory  of  a 
maritime  country  extends  beyond  low-water  mark. 

"I  can  hardly  myself  conceive  stronger  evidence  to  show  that, 
as  far  as  it  depends  on  the  agreement  of  nations,  the  territory  of 
maritime  countries  does  so  extend.  *  *  * 

"If  the  matter  were  to  be  determined  for  the  first  time,  I 
should  not  hesitate  to  hold  that  civilized  nations  had  agreed  to 
this  prolongation  of  the  territory  of  maritime  states,  upon  the  au- 
thority of  the  writers  who  have  been  cited  in  this  argument  as 
laying  down  the  affirmative  of  this  proposition.  *  *  * 

"Furthermore,  it  has  been  shown  that  English  judges  have 
held  repeatedly  that  these  coast  waters  are  portions  of  the  realm. 
It  is  true  that  this  particular  point  does  not  seem  ever  distinctly 
to  have  arisen.  But  Lord  Coke,  Lord  Stowell,  Dr.  Lushington, 
Lord  Hatherley,  L.  C.,  Erie,  C.  J.,  and  Lord  Wensleydale  (and 
the  catalogue  might  be  largely  extended)  have  all,  not  hastily, 
but  in  writing,  in  prepared  and  deliberate  judgments,  as  part  of 
the  reasoning  necessary  to  support  their  conclusions,  used  lan- 
guage, some  of  them  repeatedly,  which  I  am  unable  to  construe, 
except  as  asserting,  on  the  part  of  these  eminent  persons,  that  the 
realm  of  England,  the  territory  of  England,  the  property  of  the 


240  JURISDICTION. 

state  and  crown  of  England  over  the  water  and  the  land  beneath 
it,  extends  at  least  so  far  beyond  the  line  of  low  water  on  the 
English  coast,  as  to  include  the  place  where  this  offence  was  com- 
mitted. *  *  The  English  and  American  text  writers,  and 
two  at  least  of  the  most  eminent  American  judges,  Marshall  and 
Story,  have  held  the  same  thing. 

"Further — at  least  in  one  remarkable  instance — the  British 
Parliament  has  declared  and  enacted  this  to  be  the  law.  In  the 
present  reign  two  questions  arose  between  Her  Majesty  and  the 
Prince  of  Wales  as  to  the  property  in  minerals  below  high-water 
mark  around  the  coast  of  Cornwall.  The  first  question  was  as  to 
the  property  in  minerals  between  high-  and  low-water  mark 
around  the  coasts  of  that  county;  and  as  to  the  property  in  min- 
erals below  low-water  mark  won  by  an  extension  of  workings 
begun  above  low-water  mark. 

"The  whole  argument  on  the  part  of  the  crown  was  founded 
on  the  proposition  that  the  fundus  maris  below  low-water  mark, 
and  therefore  beyond  the  limits  of  the  county  of  Cornwall,  be- 
longed in  property  to  the  crown.  The  Prince  was  in  possession 
of  the  disputed  mines;  he  had  worked  them  from  land  un- 
doubtedly his  own;  and,  therefore,  unless  the  crown  had  a  right 
of  property  in  the  bed  of  the  sea,  not  as  first  occupier — for  the 
Prince  was  first  occupier,  and  was  in  occupation — the  crown  must 
have  failed.  *  *  *  Sir  John  Patterson  *  *  *  thus 
expressed  himself. — 'I  am  of  opinion,  and  so  decide,  that  the 
right  to  the  minerals  below  low-water  mark  remains  and  is  vested 
in  the  crown,  although  those  minerals  may  be  won  by  workings 
commenced  above  low-water  mark  and  extended  below  it,'  and  he 
recommended  the  passing  of  an  act  of  Parliament  to  give  prac- 
tical effect  to  his  decision,  so  far  as  it  was  in  favor  of  the  crown. 
The  act  of  Parliament  accordingly  was  passed,  the  21  &  22  Viet. 
c.  109. 

"We  have  therefore,  it  seems,  the  express  and  definite  author- 
ity of  Parliament  for  the  proposition  that  the  realm  does  not  end 
with  low-water  mark,  but  that  the  open  sea  and  the  bed  of  it  are 
part  of  the  realm  and  of  the  territory  of  the  sovereign.  If  so,  it 
follows  that  British  law  is  supreme  over  it,  and  that  the  law  must 
be  administered  by  some  tribunal.  It  cannot,  for  the  reasons  as- 
signed by  my  Brother  Brett,  be  administered  by  the  judges  of 


REGINA  V.  KEYN.  241 

Oyer  and  Terminer;  it  can  be,  and  always  could  be,  by  the 
Admiralty,  and  if  by  the  Admiralty,  then  by  the  Central 
Criminal  Court." 

The  court  quashed  the  conviction. 

The  majority  of  the  court  was  composed  of  Cockburn,  C.  J., 
Kelly,  C.  B.,  Bramwell,  J.  A.,  Lush  and  Field,  JJ.,  Sir  R.  Philli- 
more  and  Pollock,  B. — Lord  Coleridge,  C.  J.,  Brett,  and  Amph- 
lett,  J.  A.,  Grove,  Denman  and  Lindley,  JJ.,  dissenting. 

Manchester  v,  Mass.,  139  U.  S.  240;  Coin.  v.  Manchester,  152  Mass. 
230;  U.  S.  v.  Davis,  2  Sumner  482;  U.  S.  v.  Bennett,  3  Hughes  466;  Re- 
gina  v.  Anderson,  11  Cox  C.  C.  198;  Wildenhus  Case,  120  U.  S.  1,  U.  S.  v. 
Rodgers,  150  U.  S.  249;  U.  S.  v.  Gordon,  5  Blatch.  18;  Bish.  Cr.  Law, 
Sec.  102;  Snow's  Cases  Inter.  Law,  p.  55,  and  note  p.  71;  Bish.  I.,  Sees. 
102-108;  Clark,  p.  357;  Wharton,  Sees.  269,  270;  Hawley  &  McGregor, 
p.  70. 

NOTE.— If  islands  lie  in  proximity  to  the  coast,  the  measurement  out- 
wards is  from  these,  and  bays  and  gulfs  the  distance  across  the  mouth 
of  which  does  not  exceed  two  marine  leagues  are  wholly  within  the 
territorial  limits. 

Bish.  Criminal  Law,  104,  105;  The  Anna,  5  Rob.  Adm.  373,  385;  Com. 
v.  Carries,  2  Va.  Gas.  172;  S.  v.  Hoof  man,  9  Md.  28;  Direct  U.  S.  Cable 
Co.  v.  Anglo-Amer.  Tel.  Co.,  2  Ap.  Gas.  394;  Bish.  I.,  Sec.  104;  Clark,  p. 
358;  Hawley  &  McGregor,  70. 

NOTE.— In  the  absence  of  treaties,  international  law  runs  the  dividing 
lines  in  the  middle  of  streams  and  our  great  lakes,  except  that  the 
islands  of  our  great  lakes  are  wholly  within  the  territory  of  one  or  the 
other  of  the  adjoining  powers. 

Tyler  v.  People,  8  Mich.  320;  Com.  v.  Rodgers,  150  U.  S.  249;  Wheaton 
Inter.  Law,  252;  Bish.  Cr.  Law,  Sec.  108;  Clark,  p.  358. 


16 


242  JURISDICTION. 


3.  LIMITS  OF  THE  STATES  AND  COUNTIES. 

In  the  United  States  the  limits  of  the  States  and  counties 
are  coincident,  and  the  States  have  jurisdiction  of  all  crim- 
inal acts  committed  on  rivers,  havens,  creeks,  basins  or 
bays  within  their  territorial  limits. 

UNITED  STATES  v.  GBUSH. 

Circuit  Court  of  the  United  States,  1829. 
5  Mason,  290. 

INDICTMENT  against  the  prisoner  for  an  assault  on  one  Neil 
Lemon  with  a  dangerous  weapon,  and  with  an  intent  to  kill, 
founded  on  the  act  of  Congress  of  1825,  ch.  276,  sec.  22.  The 
indictment  contained  several  counts,  in  some  of  which  the  offence 
was  alleged  to  be  committed  on  the  high  seas,  and  in  others  in 
Massachusetts  Bay.  The  prisoner  pleaded  not  guilty,  and  was 
convicted  of  the  offence  by  the  jury.  Appeal  taken. 

STOEY,  J.  It  is  agreed  between  the  parties,  that  the  place 
where  the  vessel  (the  Pacific),  on  board  of  which  the  offence 
was  committed,  lay  at  anchor  at  the  time  of  the  commission  of 
the  offence,  was  between  Level's  Island,  George's  Island,  and 
Gallop's  Island,  which  belong  to  the  city  of  Boston,  as  part  of 
its  territorial  limits.  The  tide  ebbs  and  flows  between  these 
islands  into  what  is  called  the  inner  harbor  of  Boston ;  and  at  all 
times  of  the  tide  there  is  a  great  depth  of  water  there,  the  bottom 
or  channel  never  being  dry ;  and  vessels  at  anchor  there  are  con- 
stantly afloat  in  the  stream.  The  distance  between  these  islands 
is  about  one-eighth  of  a  mile.  Hale's  map  of  Boston,  and  "Wads- 
worth's  chart  of  the  harbor  of  Boston  and  the  adjacent  coasts 
and  headlands  are  admitted  in  evidence,  as  accurate  delineations 
of  the  same.  The  nearest  headlands  on  the  main  land  on  each 
side  are  the  town  of  Hull  on  the  southern,  and  Point  Shirley  on 
the  northern  side  of  the  harbor  of  Boston,  and  the  distance  be- 
tween these  headlands  is  about  five  or  six  miles.  There  are  a 


UNITED   STATES   V.  GRU8H.  245 

number  of  islands  between  these  headlands,  with  narrow  inlets, 
and  passages  for  vessels  between  them.  The  main  channel  into- 
the  inner  harbor  of  Boston  flows  also  between  them,  in  no  in- 
stance exceeding  one  mile  in  breadth.  Nantasket  Roads,  as  it  is 
called,  or  the  outer  harbor  of  Boston,  where  vessels,  going  from 
and  coming  to  the  port,  are  accustomed  to  lie  at  safe  anchorage, 
is  on  the  side  contiguous  to  Hull.  There  are  several  islands 
farther  out  toward  the  ocean;  and  particularly  the  Great 
Brewster,  on  which  the  principal  light-house  stands.  The  ex- 
treme point  of  the  main  land,  jutting  from  the  southern  coast 
opposite  to  this  light-house,  is  called  Point  Alderton,  and  the  dis- 
tance between  them  is  about  one  mile  and  a  quarter.  Processes 
from  the  State  courts  of  the  county  of  Suffolk  have  been  at  all 
times,  without  objection,  served  as  far  down  as  where  the  Pacific 
lay;  and  even  down  to  the  light-house  on  the  Great  Brewster; 
but  not  below.  Vessels  are  accustomed  to  anchor,  where  the 
Pacific  lay.  The  towns  of  Boston  and  Chelsea  constitute  the 
county  of  Suffolk.  Such  are  the  material  facts. 

The  statute,  on  which  the  present  indictment  is  founded  (Stat. 
of  1825,  ch.  276,  sec.  22),  declares,  "that  if  any  person  or  per- 
sons upon  the  high  seas,  or  in  any  arm  of  the  sea,  or  in  any  river, 
haven,  creek,  basin,  or  bay  within  the  admiralty  jurisdiction  of 
the  United  States,  and  out  of  the  jurisdiction  of  any  particular 
State,  on  board  any  vessel,  etc.,  etc.  shall  with  a  dangerous- 
weapon,  or  with  intent  to  kill,  etc.  commit  an  assault  on  another 
such  person  shall  on  conviction  thereof  be  punished,"  etc.,  etc. 

There  cannot,  I  think,  be  any  doubt  as  to  what  is  the  true 
meaning  of  the  words,  "high  seas,"  in  this  statute.  Mr.  Justice 
Blackstone,  in  his  Commentaries  (1  Com.  110),  uses  the  words 
"high  sea"  and  "main  sea"  (altum  mare,  or  le  haut  meer)  as 
synonymous;  and  he  adds,  "that  the  main  sea  begins  at  the  low 
water  mark."  But  though  this  may  be  one  sense  of  the  terms, 
to  distinguish  the  divided  empire,  which  the  admiralty  possesses 
between  high  water  and  low  water  mark,  when  it  is  full  sea,  from 
that  which  the  common  law  possesses,  when  it  is  ebb  sea ;  yet  the 
more  common  sense  is,  to  express  the  open,  uninclosed  ocean,  or 
that  portion  of  the  sea,  which  is  without  the  fauces  ierroe  on  the 
sea  coast,  in  contradistinction  to  that,  which  is  surrounded,  or 
inclosed  between  narrow  headlands  or  promontories.  Thus  Lord 


244  JURISDICTION. 

Hale  says  (De  Jure  Maris.  Harg.  Tracts,  ch.  4,  p.  10),  "the  sea 
is  either  that,  which  lies  within  the  body  of  the  county,  or  with- 
out. That  arm  or  branch  of  the  sea,  which  lies  within  the  fauces 
terrce,  where  a  man  may  reasonably  discern  between  shore  and 
shore,  is,  or  at  least  may  be,  within  the  body  of  a  county,  and 
therefore  within  the  jurisdiction  of  the  sheriff  or  coroner;"  and 
for  this  he  cites  Fitz.  Abridg.  Corone.  399,  8  Edw.  2.  And  then 
he  adds,  "The  part  of  the  sea,  which  lies  not  within  the  body  of 
a  county,  is  called  the  main  sea,  or  ocean."  In  United  States  v. 
Wiltberger  (5  Wheat.  R.  76,  94),  Mr.  Chief  Justice  Marshall, 
in  delivering  the  opinion  of  the  court,  manifestly  inclined  to  the 
same  interpretation  of  the  words  "high  seas,"  in  our  penal  code. 
If  (says  he)  "the  words  be  taken  according  to  the  common  under- 
standing of  mankind,  if  they  be  taken  in  their  received  and  popu- 
lar sense,  the  Tiigh  seas,'  if  not  in  all  instances  confined  to  the 
ocean,  which  washes  a  coast,  can  never  extend  to  a  river  about 
half  a  mile  wide  in  the  interior  of  a  country."  The  other  words 
descriptive  of  place  in  the  present  statute,  give  great  additional 
weight  to  this  suggestion;  for  if  "high  seas"  meant  to  include 
other  waters,  why  should  the  supplemental  words,  "arm  of  the 
sea,  river,  creek,  bay,"  etc.  have  been  used?  Lord  Hale,  follow- 
ing the  exact  definition  given  in  the  book  of  Assizes  (22  Assiz. 
93),  says,  "That  is  called  an  arm  of  the  sea,  where  the  sea  flows 
and  reflows,  and  so  far  only  as  the  sea  flows  and  reflows."  Both 
he  and  Lord  Coke  constantly  limit  the  "high  seas"  to  those 
waters  of  the  ocean,  which  are  without  the  boundary  of  any 
county  at  the  common  law;  and  we  shall  presently  see,  that 
narrow  arms  of  the  sea  are  deemed  to  be  within  the  boundary  of 
some  county  of  the  realm.  But  the  waters  of  the  ocean  upon  the 
open  sea-coast  are  admitted  on  all  sides  to  be  without  the  limits 
of  any  county,  and  are  within  the  exclusive  jurisdiction  of  the 
admiralty  up  to  high  water  mark,  when  the  tide  is  full ;  and  are 
deemed  by  the  crown  writers,  generally,  as  the  high  sea  or  main 
sea. 

From  this  view  of  the  subject,  I  am  entirely  satisfied,  as  well 
upon  the  language  of  the  authorities,  as  the  descriptive  words  in 
the  context,  that  the  words  "high  seas"  in  this  statute  are  used 
in  contradistinction  to  arms  of  the  sea,  and  bays,  creeks,  etc. 
within  the  narrow  headlands  of  the  coast,  and  comprehend  only 


UNITED   STATES  V.  GRU8H.  245 

the  open  ocean,  which  washes  the  sea-coast,  or  is  not  included 
within  the  body  of  any  county  in  any  particular  State.  And 
upon  the  facts  admitted  in  the  present  case,  the  place,  where  the 
offence  was  committed,  is  not  the  "high  seas,"  in  this  sense  of 
the  terms.  It  is,  in  my  judgment,  "an  arm  of  the  sea,"  in  the 
proper  definition  of  that  phrase.  But  an  arm  of  the  sea  may  in- 
clude various  subordinate  descriptions  of  waters,  where  the  tide 
ebbs  and  flows.  It  may  be  a  river,  harbor,  creek,  basin,  or  bay; 
and  it  is  sometimes  used  to  designate  very  extensive  reaches  of 
waters  within  the  projecting  capes  or  points  of  a  country.  My 
own  opinion  is,  that  arms  of  the  sea,  whether  of  the  one  descrip- 
tion or  the  other,  are  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States.  But  if  they  are  within  the  body  of  any 
county  of  a  particular  State,  the  State  has  also  concurrent  juris- 
diction therein.  I  do  not  now  go  over  the  grounds  of  this  opinion, 
having  upon  other  occasions  gone  into  them  somewhat  at  large. 
But  to  bring  a  case  within  the  purview  of  the  present  statute,  it 
is  not  sufficient,  that  the  place,  where  the  offence  is  committed, 
is  within  the  admiralty  jurisdiction  of  the  United  States,  whether 
it  be  an  arm  of  the  sea,  creek,  or  bay,  etc. ;  but  it  must,  by  the 
very  words  of  the  statute,  also  be  a  place  "out  of  the  jurisdiction 
of  any  particular  State."  And  it  is  out  of  the  jurisdiction  of  the 
State,  in  the  sense  of  this  statute,  if  it  be  not  within  the  body 
of  some  county  within  the  State. 

This  leads  me  to  consider  what  is  the  proper  boundary  of 
counties  bordering  on  the  sea-coast,  according  to  the  established 
course  of  the  common  law;  for  to  that  I  shall  feel  myself  bound 
to  conform  on  the  present  occasion,  whatever  might  have  been 
my  doubts,  if  I  were  called  to  decide  upon  original  principles. 
The  general  rule,  as  it  is  often  laid  down  in  the  books,  is,  that 
such  parts  of  rivers,  arms,  and  creeks  of  the  sea,  are  deemed  to  be 
within  the  bodies  of  counties,  where  persons  can  see  from  one 
side  to  the  other.  Lord  Hale  uses  more  guarded  language,  and 
says,  in  the  passage  already  cited,  that  the  arm  or  branch  of  the 
sea,  which  lies  within  the  fauces  terrce,  where  a  man  may  reason- 
ably discern  between  shore  and  shore,  is,  or  at  least  may  be, 
within  the  body  of  a  county.  Hawkins  (PI.  Cr.  b.  2,  ch.  9,  sec. 
14)  has  expressed  the  rule  in  its  true  sense,  and  confines  it  to  such 
parts  of  the  sea,  where  a  man  standing  on  the  one  side  may  see 


246  JURISDICTION. 

what  is  done  on  the  other.  And  this  is  precisely  the  doctrine, 
which  is  laid  down  by  Stanton,  J.  in  the  passage  in  Fitz.  Abridg. 
Corone.  399;  8  Edw.  2;  on  which  Lord  Coke  and  the  common 
lawyers  have  laid  so  much  stress  as  furnishing  conclusive  author- 
ity in  their  favor.  It  is  there  said,  "It  is  no  part  of  the  sea,  where 
one  may  see  what  is  done  on  the  one  part  of  the  water,  and  the 
other,  as  to  see  from  one  land  to  the  other."  And  Mr.  East,  in 
his  Treatise  on  Common  Law  (2  East,  P.  C.  ch.  17,  sec.  10,  p. 
804),  manifestly  considers  this  as  the  better  opinion. 

In  applying  the  law  to  the  State  of  facts  presented  in  the  pres- 
ent case,  I  confess,  that  there  does  not  seem  to  me  any  reason 
to  doubt,  that  the  place  where  the  offence  was  committed  was 
within  the  county  of  Suffolk.  It  is  not  necessary  to  decide, 
whether  it  be  a  bay,  or  haven,  within  the  statute,  though  it 
might,  perhaps,  indifferently  fall  within  each  denomination,  for 
it  is  a  narrow  arm  of  the  sea,  and  also  a  place  of  safe  anchorage 
for  vessels.  It  appears  to  me,  that  where  there  are  islands  enclos- 
ing a  harbor,  in  the  manner  in  which  Boston  harbor  is  enclosed, 
with  such  narrow  straits  between  them,  the  whole  of  the  waters 
must  be  considered  as  included  within  the  body  of  the  county. 
It  is  certain,  that  the  islands  themselves  are  within  the  county  of 
Suffolk ;  and  whether  they  are  inhabited  or  not,  can  make  no  dif- 
ference in  the  principles  of  law.  Islands  so  situated  must  be  con- 
sidered as  the  opposite  shores,  in  the  sense  of  the  common  law, 
where  persons,  standing  on  one  side,  may  see  what  is  done  on  the 
other.  There  can  be  no  doubt,  from  the  proximity  of  Gallop's, 
Level's,  and  George's  Islands  to  each  other,  that  any  person,  on 
either  of  their  shores,  could  see  what  was  done  on  the  other.  I 
do  not  understand  by  this  expression,  that  it  is  .necessary,  that 
the  shores  should  be  so  near,  that  all  that  is  done  on  one  shore 
could  be  discerned,  and  testified  to  with  certainty,  by  persons 
standing  on  the  opposite  shore;  but  that  objects  on  the  opposite 
shore  might  be  reasonably  discerned,  that  is,  might  be  distinctly 
seen  with  the  naked  eye,  and  clearly  distinguished  from  each 
other.  Indeed,  upon  the  evidence  before  me,  I  incline  strongly 
to  the  opinion,  that  the  limits  of  the  county  of  Suffolk,  in  this 
direction,  not  only  include  the  place  in  question,  but  all  the 
waters  down  to  a  line  running  across  from  the  light-house  on  the 
Great  Brewster  to  Point  Alderton.  In  the  sense  of  the  common 


UNITED   STATES  V.  CRUSH.  247 

law,  these  seem  to  me  the  true  fauces  terrce,  where  the  main 
ocean  terminates. 

Upon  the  whole,  my  opinion  is,  that  the  court,  upon  the  facts, 
has  no  jurisdiction,  and  that  a  new  trial  ought  to  be  granted. 
This  renders  it  unnecessary  to  consider,  whether  the  other  point, 
made  in  arrest  of  judgment,  can  be  maintained.  I  allude  to  the 
objection,  that,  in  the  caption  of  the  indictment,  after  the  usual 
beginning,  "United  States  of  America,  District  of  Massachu- 
setts," the  letters  (ss.)  are  omitted.  The  point  has,  however,  been 
argued;  and,  as  at  present  advised,  it  strikes  me  to  be  clearly  not 
maintainable  as  a  valid  objection. 

The  district  judge  concurs  in  this  opinion;  and  therefore  a 
new  trial  must  be  granted.  Notice  must  be  given  to  the  proper 
prosecuting  officers  of  the  State,  that  the  prisoner  may  be  dealt 
with  according  to  law  in  the  State  courts. 

Com.  v.  Peters,  12  Mete.  387;  U.  S.  v.  Bevans,  3  Wheaton  336;  U.  S.  v. 
Wilson,  3  Blatch.  436;  Com.  v.  Alger,  7  Gush.  53;  Pollard  v.  Hagan,  3 
How.  (U.  S.)  212;  U.  S.  Rev.  Stat.,  Sec.  5339  et  seq.;  Clark,  p.  357,  358; 
Bishop  I.,  Sec.  146  et  seq. 

NOTE. — Some  States  have  specifically  enacted  this  by  statute. 

Com.  v,  Gaines,  2  Vas.  Cas.  172;  Manley  v.  People,  7  N.  Y.  295;  Man- 
chester v.  Mass.,  139  U.  S.  240;  People  v.  Tyler,  7  Mich.  161;  Clark,  p. 
359;  Bish.,  Sees.  105,  108,  148,  173,  176. 

NOTE.— On  non-navigable  rivers  the  line  extends  to  the  mid-distance 
between  the  banks,  but  on  navigable  rivers  to  the  thread  of  the  stream 
— that  is,  to  the  middle  channel;  and  if  there  are  several  channels,  to 
the  middle  of  the  principal  one,  or  rather  the  one  usually  followed. 

Iowa  v.  111.,  147  U.  S.  1;  Buck  v.  Ellenbolt,  15  L.  R.  A.  187;  Dunleith  v. 
Bridge  Co.,  15  la.  558;  Buttenuth  v.  St.  Louis  Bridge  Co.,  123  111.  535; 
State  v.  Mullen,  35  la.  199. 

NOTE. — But  the  Ohio  river  between  Indiana  and  Kentucky  is  in  Ken- 
tucky, Ohio  extending  to  the  low  water  mark  on  her  side  of  the  river; 
and  the  waters  of  the  Hudson  river  between  New  York  and  New  Jersey 
are  entirely  within  the  jurisdiction  of  New  York. 

Indiana  v.  Kentucky,  136  U.  S.  479;  Handly  v.  Anthony,  5  Wheat  374; 
Church  v.  Chambers,  3  Dana  274;  McFall  v.  Com.,  2  Met.  (Ky.)  394; 
McFarland  v.  McKnight,  6  B.  Mon.  510;  ex  parte  Devoe  Manf.  Co.,  108 
U.  S.  401;  People  v.  Central  R.  R.,  42  N.  Y.  283;  The  Norma,  32  Fed. 
Rep.  411;  Clark,  p.  358;  Bishop  I.,  Sec.  150. 

NOTE. — Both  Wisconsin  and  Minnesota  courts  would  have  jurisdic- 
tion to  punish  a  crime  committed  on  an  island  in  the  Mississippi  river 
on  either  side  of  the  channel,  as  the  enabling  acts  of  Wisconsin  and 
Minnesota  give  States  concurrent  jurisdiction. 

State  v.  George,  63  N.  W.  100;  Minn.  Stat  1894,  Sec.  4835,  4836. 


248  JURISDICTION. 

NOTE.— In  Minnesota  a  person  who,  having  stolen  property  in  a  for- 
eign State,  brings  it  into  the  State,  is  triable  in  any  county  through 
which  he  passes;  also,  having  stolen  property  within  the  State,  he  may 
be  indicted  in  any  county  through  which  he  passes  with  it. 

Minn.  Stat.  1894,  Sec.  6721-6722;  Nash  v.  State,  2  Greene  286. 

NOTE. — In  Minnesota  offences  committed  on  boundary  lines  of  coun- 
ties or  within  100  yards  of  the  same  are  indictable  in  either  county. 

Minn.  Stat.  1894,  Sec.  7258;  State  v.  Masteller,  45  Minn.  128;  State  t?. 
Robinson,  14  Minn.  447;  State  v.  New,  22  Minn.  76;  State  v.  Anderson, 
25  Minn.  66;  Com.  v.  Gillon,  2  Allen  502. 

NOTE. — In  Minnesota  duelling  outside  the  State  under  a  plan  con- 
ceived within  the  State  may  be  tried  in  any  county  within  the  State. 

Minn.  Stat.  1894,  Sec.  6493. 

NOTE. — Indictment  for  libel  in  this  State  may  be  found  in  any  county 
within  the  State  where  the  paper  is  published  or  circulates. 

Minn.  Stat.,  Sec.  6503. 

NOTE. — For  offences  in  Minnesota  committed  on  a  railroad  train  or  a 
boat,  the  indictment  may  be  brought  in  any  county  through  which  the 
conveyance  passes  or  its  journey  begins  or  ends. 

Minn.  Stat.  1894,  Sec.  6846. 


4.  UNITED  STATES  WITHIN  STATE  LIMITS. 

a. 
Exclusive  Jurisdiction. 

The  admiralty  and  maritime  jurisdiction  of  the  United 
States  extends  not  only  to  the  high  seas,  but  to  all  internal 
navigable  streams. 

The  United  States  has  exclusive  jurisdiction  over  all 
criminal  acts  committed  within  territory  ceded  to  it;  and 
also  exclusive  jurisdiction  of  all  acts  in  violation  of  the 
regulations  controlling  foreign  and  interstate  commerce. 

STATE  v.  ZULICH. 

Supreme  Court  of  New  Jersey,  1862. 
5  Dutcher,  409  (29  N.  J.  L.). 

OGDEN,  J.  The  writ  in  this  case  was  allowed  on  the  applica- 
tion of  the  father  of  the  prisoner.  In  his  petition,  presented  to 


STATE  V.   ZULICH.  249 

me  at  chambers,  he  alleged  that  his  son,  under  the  age  of  eigh- 
teen years,  was  illegally  and  unjustly  confined  and  detained  by 
C.  Meyer  Zulich,  Lieutenant-Colonel  of  the  Second  Regiment 
of  the  District  of  Columbia  Volunteers.  At  the  time  specified 
for  the  return,  the  defendant  produced  the  body  of  his  prisoner 
before  me,  and  returned  with  the  writ,  that  he  detained  the  pri- 
soner because,  on  the  31st  of  January,  1862,  he  duly  enlisted 
in  the  army  of  the  United  States,  in  Company  C,  of  the  District 
of  Columbia  Volunteers,  and  was  duly  and  voluntarily  sworn  in, 
as  a  soldier  of  the  army  of  the  United  States,  for  the  term  of 
three  years,  unless  sooner  discharged  by  the  proper  authority — 
he  at  the  time  representing  himself  to  be  over  the  age  of  twenty- 
one  years;  that  afterwards,  and  during  the  term  of  service,  he 
deserted  from  the  army,  and  fled  to  the  city  of  Newark,  and  that 
in  compliance  with  special  military  orders,  copies  of  which  are 
appended  to  the  return,  he  arrested  the  party  in  Newark,  New 
Jersey,  as  a  deserter,  and  holds  him  as  a  prisoner,  being  about  to 
deliver  him  up  to  his  commanding  officer,  in  the  city  of  Washing- 
ton, for  trial  by  a  court  martial. 

The  petitioner  traversed  the  return  in  writing,  by  denying 
that  his  son  was  duly  enlisted  as  a  soldier  in  the  army  of  the 
United  States,  or  sworn  in,  as  set  forth  in  the  return,  stating,  that 
at  the  time  of  the  pretended  enlistment  he  was  under  seventeen 
years  of  age,  with  his  father  in  Newark;  and  that  the  pretended 
enlistment  was  without  the  knowledge  or  consent  of  the  father 
or  mother,  or  guardian  or  master  of  the  infant.  He  also  denies 
that  the  prisoner  is  a  deserter  from  the  army,  and  alleges  that 
his  arrest,  confinement,  and  detention  are  illegal  and  unjust. 

At  the  time  and  place  fixed  by  me  for  a  hearing,  the  district 
attorney  of  the  United  States,  in  behalf  of  the  officer,  moved  that 
the  prisoner  should  be  remanded  to  custody,  because  the  return 
showed  a  state  of  facts  which  divested  a  state  tribunal  of  jurisdic- 
tion. It  was  contended  that  inasmuch  as  the  return  judicially 
apprized  me  that  the  party  is  in  custody  under  the  authority  of 
the  United  States,  I,  acting  under  the  authority  of  the  State, 
could  proceed  no  further  with  the  investigation. 

This  insistment  has  brought  up  the  interesting  question, 
whether  in  such  cases  the  authority  of  the  general  government 
is  supreme,  and  the  jurisdiction  of  its  judicial  tribunals  is  exclu- 


250  JURISDICTION. 

sive,  or  whether  the  State  tribunals,  in  the  use  of  the  writ  of 
habeas  corpus,  have  concurrent  jurisdiction  with  that  of  the 
United  States  in  granting  relief  in  case  of  an  unlawful  imprison- 
ment by  an  officer  of  the  United  States  under  color  or  by  pretext 
of  the  authority  of  the  United  States. 

The  matter  has  frequently  been  discussed,  and  has  received 
different  decisions  in  different  States  of  the  Union.  As  early  as 
1819,  Mr.  Justice  Southard,  in  delivering  the  opinion  of  the 
Supreme  Court  in  the  case  of  Anderson,  where  the  question  of 
jurisdiction  was  waived,  took  occasion  to  say,  that  it  would  "re- 
quire in  him  a  great  struggle,  both  of  feeling  and  judgment,  even 
to  arrive  at  the  point  where  he  would  be  prepared  to  deny  the 
jurisdiction  of  the  State,  and  say  that  the  highest  tribunals  of  the 
State  are  incapable  of  inquiring  into  the  imprisonment  of  her 
citizens,  no  matter  how  gross  or  illegal  it  may  be,  provided,  it 
be  by  agents  of  the  United  States,  and  under  color  of  their 
laws." 

The  judicial  power  of  the  United  States  is  commensurate  with 
every  case  arising  under  the  laws  of  the  Union,  and  the  federal 
courts,  by  acts  of  Congress,  have  jurisdiction,  exclusive  of  the 
State  courts,  of  all  crimes  and  offences  cognizable  under  the  au- 
thority of  the  United  States.  Hence  Chief  Justice  Kent,  in 
Ferguson's  case,  said  that  abuses  of  the  authority  of  the  United 
States  were  offences  against  the  United  States,  and  exclusively 
cognizable  in  their  courts;  and  that  when  the  State  courts  have 
not  jurisdiction  over  the  whole  subject  matter  of  the  imprison- 
ment, and  the  federal  courts  have,  by  indictments  as  well  as  by 
habeas  corpus,  it  appeared  to  him  that  there  was  a  manifest  want 
of  jurisdiction  in  the  case. 

The  latest  discussion  of  this  delicate  and  interesting  question 
is  found  in  the  opinion  of  Chief  Justice  Taney,  delivered  in 
1858,  in  the  case  of  Booth,  charged  with  aiding  and  abetting  the 
escape  of  a  fugitive  slave,  reported  in  21  Howard.  After  stating 
at  length  the  powers  conferred  upon  the  general  government  by 
the  constitution,  and  those  surrendered  expressly  by  the  States, 
and  the  establishment  and  jurisdiction  of  the  federal  courts, 
he  concludes,  that  although  State  courts  are  authorized  to 
grant  a  writ  of  habeas  corpus,  yet  when  it  appears  that  the  person 
for  whose  discharge  it  is  employed  is  in  custody  under  the  au- 


STATE  V.   ZULJCH.  251 

thority  of  the  United  States  the  State  jurisdiction  ceases;  that 
the  prisoner  being  within  the  dominion  and  exclusive  jurisdiction 
of  the  United  States,  their  tribunals  alone  can  punish  him  for  an 
offence  against  their  laws;  and  if  wrongfully  imprisoned,  their 
judicial  tribunals  alone  can  release  him  and  afford  him  redress.  He 
indeed  goes  the  length  of  saying,  that  although  it  be  the  duty  of 
the  officer  of  the  government  to  make  known  to  the  State  tribu- 
nal, by  a  proper  return  to  the  writ,  the  authority  under  which  he 
detains  a  prisoner,  it  is  his  imperative  duty  to  hold  on  to  him 
under  the  authority  of  the  United  States,  and  to  refuse  obedi- 
ence to  the  mandate  or  process  of  any  other  government ;  that  he 
should  not  take  the  prisoner  before  a  State  tribunal  upon  a 
habeas  corpus  issued  under  State  authority;  and  that  it  would  be 
his  duty  to  resist  any  attempt  to  control  him  in  the  custody  of  his 
prisoner,  and  to  call  to  his  aid  any  force  that  might  be  necessary 
to  maintain  the  authority  of  the  law  against  illegal  interference. 

The  exigencies  of  the  service  certainly  require  that  the  con- 
tracts of  enlistment  should  be  rigidly  enforced  where  they  are 
not  void  for  illegality;  and  public  policy  and  the  effectiveness  of 
our  army  demand  uniformity  of  decisions  in  matters  of  such  vital 
interest.  Enlistments  are  made  under  the  laws  of  the  United 
States,  constitutionally  enacted.  The  federal  tribunals  in  the 
different  States,  deriving  power  from  and  being  responsible  to 
the  same  source  and  authority,  having  complete  if  not  exclusive 
jurisdiction  over  such  subject  matters  by  the  use  of  the  writ  of 
habeas  corpus  and  otherwise,  it  would  be  no  abridgment  of  the 
right  of  the  citizen  to  be  protected  in  the  enjoyment  of  his 
personal  liberty,  in  such  case  to  turn  him  over  to  the  judicial 
power  of  the  United  States,  where  ready  and  effectual  aid  is 
provided  by  law  for  his  security. 

If  the  construction  of  the  laws  for  enlistments  and  of  the  rules 
and  articles  of  war  be  intrusted  to  State  tribunals,  the  decisions 
may  vary  with  the  notions  which  prevail  in  different  territorial 
spaces  upon  the  doctrines  of  State  sovereignty,  and  deserters  be 
thus  encouraged  to  betake  themselves  to  States  where  lax  views 
might  prevail  respecting  the  importance  of  maintaining  the 
integrity  of  our  arms  in  the  existing  national  difficulties.  If  this 
case  rested  on  the  legality  of  the  enlistment,  I  should  decidedly 
incline  to  leave  the  petitioner  to  the  action  of  the  federal  tribu- 
nals. 


252  JURISDICTION, 

But  the  return  states  a  fact,  which  makes  it  eminently  proper 
that  the  officer  should  retain  the  custody  of  his  prisoner.  He  is 
not  the  commandant  of  the  corps  to  which  the  prisoner  was  at- 
tached, but  being  in  the  service  of  the  United  States,  he  was 
detailed  by  a  competent  military  authority  to  proceed  from 
"Washington  to  different  places  in  this  State  to  arrest  deserters;, 
and  acting  in  that  executive  capacity,  he  arrested  Kniesch  as  a 
deserter  in  Newark,  and  is  about  to  report  him  to  the  command- 
ing officer  at  Washington,  and  returns  that  he  holds  the  person 
prisoner  as  a  deserter.  His  authority  to  arrest  and  detain  rests 
upon  his  deputation  to  overtake  deserters,  and  he  cannot  be 
presumed  to  have  personal  knowledge  of  the  enlistment. 

He  was  not  required  to  know  the  facts  of  the  case  beyond  those 
which  show  jurisdiction  in  the  authority  by  which  he  was 
deputized,  the  enlistment  and  desertion  of  the  prisoner.  It  is 
manifest  that  Kneisch  went  through  the  forms  of  enlistment  and 
entrance  into  the  public  service;  and  while  de  facto  a  soldier,  he 
is  charged  with  desertion.  By  the  twentieth  article  of  war, 
desertion  is  made  a  high  crime,  punishable  by  a  court  martial; 
and  the  question  presented  by  this  branch  of  the  case  is,  whether 
the  due  administration  of  justice  should  be  retarded  by  the  use 
of  the  writ  of  habeas  corpus,  and  a  person  charged  with  crime 
and  in  custody  on  criminal  process  be  permitted  to  arrest  the 
proceedings,  go  behind  the  process,  and  show  that  he  was  incap- 
able in  law  of  committing  the  offence  charged  upon  him — to  wit, 
that  his  enlistment  was  voidable. 

I  think  that  only  one  true  answer  can  be  given  to  the  proposi- 
tion. Mutiny  is  made  a  crime  by  the  seventh  article  of  war;  buc 
could  it  be  gravely  insisted  that  a  soldier  who  entered  the  ranks 
of  the  army,  and  had  excited,  caused,  or  joined  in  a  mutiny, 
which  had  resulted  in  the  serious  disorganization  of  the  troops  or 
company,  would,  when  under  arrest  and  before  trial  by  court 
martial,  on  application  of  one  having  a  right  to  his  services  or 
custody,  through  an  interposition  of  the  writ  of  habeas  corpus, 
delay  and  perhaps  prevent  a  trial  for  the  offence  by  showing  that 
there  was  a  defect  in  his  enlistment? 

The  statement  of  the  proposition  suggests  the  only  safe  answer. 
The  return  of  Colonel  Zulich  shows  that  the  person  is  in  custody 
for  a  crime,  by  an  arrest  through  competent  authority,  and  he  is 


MARTIN   V.   STATE.  253 

authorized  to  continue  him  as  a  prisoner,  to  be  dealt  with  accord- 
ing to  law. 

State  v.  Campbell,  53  Minn.  354;  Mitchell  v.  Tibbetts,  17  Pick.  298; 
U.  S.  v.  Logan,  45  Fed.  Rep.  872;  In  re  Neagle,  135  U.  S.  1;  State  v. 
Adams,  4  Blackford  146  ;  State  v.  Pike,  15  N.  H.  83 ;  Davison  v.  Cham- 
plin,  7  Conn.  244;  Ex  parte  Crow  Dog,  109  U.  S.  556;  U.  S.  v.  Clarke,  31 
Fed.  R.  710;  U.  S.  v.  Thomas,  151  U.  S.  577;  Bishop  I.,  Sec.  156;  May, 
Sec.  82. 


b. 
Concurrent  Jurisdiction. 

The  crime  may  be  of  such  a  nature  that  it  is  an  offence 
both  under  the  State  and  United  States  laws,  for  instance, 
treason  or  counterfeiting;  for  such  crimes  indictments  are 
maintainable  by  the  State  courts,  while  proceedings  will 
also  lie  under  the  United  States  statutes. 

MARTIN  v.  STATE. 

Court  of  Appeals  of  Texas,  1885. 
18  Tex.  App.   224. 

APPELLANT  was  indicted  and  convicted  for  counterfeiting  a 
silver  dollar  of  the  current  coin  of  the  United  States.  No  state- 
ment of  the  evidence  appears  in  the  record.  The  only  contested 
question  seems  to  have  been  that  of  jurisdiction,  which  is  suf- 
ficiently indicated  in  the  opinion  of  this  court. 

As  the  punishment  of  appellant,  the  jury  assessed  a  term  of 
five  years  in  the  penitentiary. 

WILSON,  JUDGE.  It  is  submitted  by  counsel  for  appellant  that 
the  power  to  coin  money  is  a  power  expressly  conferred  upon  the 
Federal  government,  and  denied  to  the  States.  And  that  the 
power  to  punish  for  counterfeiting  coin  is  an  express  power  to 
the  Federal  government,  and  a  power  denied  to  the  States;  and 
that  therefore  the  appellant  could  not  legally  be  prosecuted  and 


254  JURISDICTION. 

convicted  in  the  courts  of  this  State  for  the  offence  of  counter- 
feiting,— the  State  courts  not  having  jurisdiction  of  said  of- 
fence. 

This  position  is  not  sound.  Mr.  Bishop  says:  "There  are 
wrongful  acts  of  a  nature  to  violate  duties  both  to  the  United 
States  and  a  particular  State.  And  some  of  these  acts  are  declared 
crimes  by  the  positive  laws  of  each.  It  is  probably  the  doctrine 
of  the  courts,  though  not  free  from  doubt  in  principle,  that, 
whenever  Congress  has  the  constitutional  power  to  render  a  thing 
punishable  as  a  crime  against  the  United  States,  she  can  make 
this  legislation  exclusive  of  State  law.  But,  however  this  may 
be,  if  the  national  statute  neither  in  terms  nor  by  necessary 
implication  excludes  the  State  law,  the  latter  is  not  superseded. 
Therefore  indictments  are  maintainable  in  the  State  courts  for 
the  offence  against  the  State  of  counterfeiting  the  coin  or  bills 
of  the  United  States,  or  foreign  coin  made  current  by  act  of 
Congress;  while  proceedings  will  also  lie,  under  United  States 
statutes,  before  the  national  tribunals,  for  doing  the  same  thing 
as  an  offence  against  the  United  States.  Congress  has  not  at- 
tempted to  restrict  the  power  of  the  States."  (1  Bish.  Cr.  Law, 
Sec.  178.  See,  also,  Sees.  155,  984,  987,  989;  Fox  v.  Ohio,  5 
How.  (U.  S.),  410;  State  v.  McPherson,  9  Iowa,  53;  Sizemore 
v.  The  State,  3  Head,  26;  2  Bish.  Cr.  Law,  Sees.  283,  285,  287.) 

Our  Code  creates  and  defines  the  offence  of  counterfeiting, 
and  it  is,  therefore,  an  offence  against  the  laws  of  the  State,  and 
the  courts  of  the  State  have  jurisdiction  to  try,  and  to  punish 
parties  guilty  thereof.  The  court,  therefore,  did  not  err  in  over- 
ruling the  defendant's  plea  to  its  jurisdiction. 

There  is  no  statement  of  facts  in  the  record.  The  indictment 
is  in  all  respects  a  good  one;  the  charge  of  the  court  is  in  con- 
formity with  the  indictment  and  the  law.  There  is  no  error  in 
the  conviction  and  it  is  affirmed. 

State  v.  McPherson,  9  la.  53;  Jett  v.  Com.,  18  Grat.  953;  People  v. 
White,  34  Cal.  183;  Com.  v.  Fuller,  8  Met.  313;  Com.  v.  Barry,  116  Mass. 
1;  Harlan  c.  People,  1  Doug.  (Mich.)  207;  Moore  t>.  People,  14  How.  13; 
May,  Sec.  83;  Bishop  I.,  Sec.  178;  Wharton,  Sec.  264  et  seq.;  Hawley  & 
McGregor,  p.  55. 


UNITED  STATES  V.   GREATHOU8E.  255 


E. 
SPECIFIC  CRIMES. 

When  the  law,  either  common  or  statutory,  forbids  a 
certain  union  of  intent  and  act,  and  affixes  a  penalty 
thereto,  it  establishes  a  specific  crime. 

1.  CRIMES  AGAINST  THE  GOVERNMENT. 

a. 
Treason. 

Treason  is  a  breach  of  the  allegiance  owed  by  a  subject 
to  the  government.  In  the  United  States  it  consists  in 
levying  war  against  the  United  States,  a  State,  or  adhering 
to  their  enemies,  giving  them  aid  and  comfort. 

UNITED  STATES  v.  GREATHOUSE. 

Circuit  Court  of  the  United  States,  1863. 
2  Abb.  (U.  S.  C.  C.),  364. 

(See  page  185  for  this  case.) 

Const.  U.  8.,  Art.  3,  Sec.  3;  U.  S.  v.  Hoxie,  1  Paine  265;  U.  S.  t?.  Mit- 
chell, 2  Dall.  348;  U.  S.  v.  Insurgents,  2  Dall.  335;  Ex  parte  Ballman,  4 
Cranch  75;  U.  S.  v.  Aaron  Burr,  4  Cranch  460;  Minn.  Stat.  1894,  Sec. 
6318;  N.  Y.  Penal  Code,  37-40;  Clark,  p.  32,  351;  Bishop  I.,  Sees.  611-613; 
May,  Sec.  124;  Wharton,  Sec.  1782. 


256  SPECIFIC   CRIMES. 

NOTE. — Petit  treason  was  the  murder  of  a  superior  by  an  Inferior,  as 
a  husband  by  his  wife,  a  master  by  his  servant.  It  was  never  recog- 
nized in  this  country,  and  is  now  abolished  in  England. 

State  i\  Bilansky,  3  Minn.  246;  Bish.  Or.  Law,  611;  Clark,  p.  32;  May, 
Sec.  134;  Bishop  I.,  Sec.  611;  Hawley  &  McGregor,  115. 

Levying  war: 

NOTE. — It  is  not  sufficient  to  merely  conspire  to  levy  war;  there  must 
be  an  overt  act;  but  those  in  league  with  those  assembling  are  guilty. 

N.  Y.  Penal  Code,  Sec.  39;  Minn.  Stat.  1894,  Sec.  6322;  Clark,  p.  352; 
Wharton,  Sec.  1793;  Hawley  &  McGregor,  116. 

NOTE. — Conviction  for  treason  can  only  be  had  upon  testimony  of  two 
lawful  witnesses  to  the  same  overt  act  of  treason,  or  by  confession  in 
open  court. 

U.  S.  Const.,  Art.  3,  Sec.  3;  Clark,  p.  353;  Wharton,  Sec.  1808;  Hawley 
&  McGregor,  118. 

NOTE. — Misprision  of  treason.  This  is  the  crime  of  concealing  a  trea- 
son; or,  knowing  of  the  commission  of  treason,  failing  to  disclose  the 
same  as  soon  as  may  be. 

Rev.  St.  U.  S.,  Sec.  5333;  Minn.  Stat.  1894,  Sec.  6320;  Bishop  I.,  456, 
716;  Clark,  p.  351;  Wharton,  Sec.  1784;  Hawley  &  McGregor,  p.  117. 


b. 
Crimes  against  the  Elective  Franchise. 

Illegal  voting  is  a  crime  at  common  law,  by  United 
States,  and  State  statutes. 

Minn.  Stat.  1894,  Sec.  21,  22,  35,  76,  85,  95,  103,  108,  110,  113,  122,  160, 
161,  165,  6788,  201;  N.  Y.  Penal  Code,  Sec.  41;  State  v.  Welsch,  21  Minn. 
22;  State  v.  Davis,  22  Minn.  423;  Clark,  p.  354;  Bish.  I.,  Sec.  471;  Whar- 
ton, Sec.  1832  a;  Hawley  &  McGregor,  p.  27. 


STATE  V.   ELLIS.  257 

C. 

Bribery. 

Bribery  is  the  giving  or  receiving  of  a  reward  to  influ- 
ence any  official  act  in  either  executive,  legislative  or  judi- 
cial department  of  the  government.  The  gist  of  the 
offence  is  the  tendency  of  the  .bribe  to  pervert  justice. 

STATE  v.  ELLIS. 

Supreme  Court  of  New  Jersey,  1868. 
33  N.  J.  L.    102. 

THE  opinion  of  the  court  was  delivered  by 

DALRIMPLE,  J.  The  indictment  in  this  case  was  removed  into 
this  court  by  ceriiorari  to  the  Sessions  of  Hudson.  It  sets  forth 
in  substance,  in  language  sufficiently  plain  and  intelligible,  that 
application  having  been  duly  made  to  the  common  council  of 
Jersey  City  for  leave  to  lay  a  railroad  track  along  one  of  the 
public  streets  of  that  city,  the  defendant  wickedly  and  corruptly 
offered  to  one  of  the  members  of  said  common  council  the  sum 
of  fifty  dollars  to  vote  in  favor  of  said  application.  Upon  return 
of  the  certiorari,  a  motion  was  made  to  quash  the  indictment,  on 
the  ground  that  the  facts  set  forth  do  not  constitute  a  crime. 

It  is  said  that  the  common  law  offence  of  bribery  can  only  be 
predicated  of  a  reward  given  to  a  judge  or  other  official  concerned 
in  the  administration  of  justice.  The  earlier  text  writers  thus 
define  the  offence:  "Where  any  man  in  judicial  place  takes  any 
fee  or  pension,  robe  or  livery,  gift,  reward  or  brocage,  of  any  per- 
son, that  hath  to  do  before  him  in  any  way,  for  doing  his  office, 
or  by  color  of  his  office,  but  of  the  king  only,  unless  it  be  meat 
and  drink,  and  that  of  small  value."  3  Inst.  145.  The  definition 
in  4  Blackstone's  Com.  139,  is  to  the  same  effect.  Hawkins,  in 
his  Pleas  of  the  Crown,  vol.  1,  p.  312,  gives,  substantially,  the 
same  description  of  the  offence,  but  adds :  "Also,  bribery  signifies 
17 


258  SPECIFIC  CRIMES. 

the  taking  or  giving  of  a  reward  for  offices  of  a  public  nature." 
The  later  commentators,  supported,  as  I  think,  by  the  adjudged 
cases,  however,  maintain  the  broader  doctrine,  that  any  attempt 
to  influence  an  officer  in  his  official  conduct,  whether  in  the  ex- 
ecutive, legislative,  or  judicial  department  of  the  government,  by 
the  offer  of  a  reward  or  pecuniary  consideration,  is  an  indictable 
common  law  misdemeanor.  3  Greenleaf's  Ev.,  Sec.  71;  Bishop 
on  Criminal  Law,  vol.  1,  sec.  95,  and  notes;  1  Russell  on  Crimes 
156.  The  case  of  Rex  v.  Vaughan,  4  Burr.  2494,  arose  upon 
motion  for  an  information  for  a  misdemeanor  against  the  defend- 
ant, for  offering  money  to  the  Duke  of  Grafton,  First  Lord  of 
the  Treasury,  to  procure  the  defendant's  appointment  by  the 
crown  to  an  office.  Lord  Mansfield,  in  his  opinion  in  that  case, 
says :  "If  these  transactions  are  believed  to  be  frequent,  it  is  time 
to  put  a  stop  to  them.  A  minister,  trusted  by  the  king  to  recom- 
mend fit  persons  to  offices,  would  betray  that  trust,  and  disap- 
point that  confidence,  if  he  should  secretly  take  a  bribe  for  that 
recommendation."  The  motion  was  granted.  In  the  case  of  Rex 
v.  Plympton,  2  Lord  Raymond  1377,  the  court  held  that  it  was 
an  offence  to  bribe  persons  to  vote  at  elections  of  members  of  a 
corporation.  Many  other  cases  might  be  cited  in  support  of  the 
general  proposition  laid  down  by  the  later  text  writers  above 
referred  to.  The  cases  will,  however,  all  be  found  collated  in  2d 
Bishop's  Criminal  Law,  in  the  notes  to  Sec.  76  and  77.  Indeed, 
the  authorities  seem  to  be  all  one  way.  Neither  upon  principle 
nor  authority  can  the  crime  of  bribery  be  confined  to  acts  done  to 
corrupt  officers  concerned  in  the  administration  of  justice.  If  in 
the  case  now  before  us,  it  was  no  crime  for  the  defendant  to  offer, 
it  would  have  been  no  crime  for  the  councilman  to  accept  the 
bribe.  The  result  would,  therefore,  be  that  votes  of  members  of 
council  on  all  questions  coming  before  them,  could  be  bought  and 
sold  like  merchandise  in  the  market.  The  law  is  otherwise.  The 
common  law  offence  of  bribery  is  indictable  and  punishable  in 
this  State.  Our  statutes  against  bribery  merely  define  and  fix  the 
punishment  for  the  offence,  in  cases  of  bribery  of  judicial  officers 
and  members  of  the  legislature;  they  do  not  repeal  or  abrogate, 
or  otherwise  alter  the  common  law. 

It  is  contended,  in  the  next  place,  that  the  facts  set  forth  in 
the  indictment  constitute  no  offence,  inasmuch  as  the  common 


STATE  V.   ELLIS.  259 

council  had  not  jurisdiction  to  grant  the  application  for  which 
the  vote  was  sought  to  be  bought.   In  my  opinion,  it  is  entirely 
immaterial  whether  council  had  or  had  not  jurisdiction  over  the- 
subject  matter  of  the  application.  If  the  application  was,  in  point 
of  fact,  made,  an  attempt  to  procure  votes  for  it  by  bribery  was; 
criminal.    The  offence  is  complete  when  an  offer  of  reward  is- 
made  to  influence  the  vote  or  action  of  the  official.   It  need  not 
be  averred,  that  the  vote,  if  procured,  would  have  produced  the 
desired  result,  nor  that  the  official,  or  the  body  of  which  he  was 
a  member,  had  authority  by  law  to  do  the  thing  sought  to  be  ac- 
complished.   Suppose  an  application  made  to  a  justice  of  the 
peace,  in  the  court  for  the  trial  of  small  causes,  for  a  summons 
in  case  of  replevin,  for  slander,  assault  and  battery,  or  trespass, 
wherein  title  to  lands  is  involved:  over  these  actions  a  justice  of 
the  peace  has  no  jurisdiction,  and  any  judgment  he  might  render 
therein,  would  be  coram  non  judice  and  void;  yet,  I  think,  it 
can  hardly  be  contended,  that  a  justice  thus  applied  to  may  be 
offered,  and  with  impunity  accept  a  reward,  to  issue  a  summons 
in  any  case  without  his  jurisdiction.    If  the  common  council  of 
Jersey  City  had  not  authority  to  grant  the  application  referred 
to,  the  act  of  the  defendant  in  endeavoring  to  procure  the  grant 
asked  for  was  only  the  more  criminal,  because  he  sought,  by  the 
corrupt  use  of  money,  to  purchase   from   council   an   easement 
which  they  had  no  authority  to  grant.  He  thereby  endeavored  to 
induce  them  to  step  beyond  the  line  of  their  duty,  and  usurp  au- 
thority not  committed  to  them.    The  gist  of  the  offence  is  said 
to  be  the  tendency  of  the  bribe  to  pervert  justice  in  any  of  the  gov- 
ernmental   departments,  executive,  legislative,  or    judicial.    2 
Bishop's  Criminal  Law,  Sec.  96.    Would  it  not  be  a  plain  per- 
version of  justice,  to  buy  the  votes  of  councilmen  in  favor  of  a 
surrender  of  the  streets  of  the  city,  for  the  purposes  of  a  railroad, 
when  such  surrender  is  unauthorized  by  law?   The  rights  of  the 
citizens  of  the  municipality  thus  corruptly  tampered  with  and 
bargained  away,  might  be  regained  after  a  long  and  expensive 
litigation,  or  in  some  other  mode;  nevertheless,  bribery  and  cor- 
ruption would  have  done,  to  some  extent  at  least,  their  work,  and 
the  due  course  of  justice  have  been  disturbed.   But  I  am  not  pre- 
pared to  assent,  as  at  present  advised,  to  the  proposition  that  the 
common  council  could  not  properly  entertain  the  application. 


260  SPECIFIC   CRIMES. 

They  were  asked  by  a  chartered  railroad  company  of  this  State, 
having  its  terminus  in  Jersey  City,  to  consent  that  a  railroad 
track  might  be  laid  along  one  of  the  public  streets  of  that  city. 
It  is  not  pretended  that  any  legislative  authority  to  lay  such 
track  had  been  obtained.  The  railroad  company  could  not,  under 
these  circumstances,  lawfully  appropriate  to  its  use  one  of  the 
public  streets  of  the  city  without  the  consent  of  the  city,  which 
has  full  control  over  all  public  streets  within  the  city  limits. 
Laws  of  1851,  p.  406,  sec.  6. 

Whether  or  not  the  common  council  has  the  power,  with  or 
without  legislative  sanction,  to  grant  the  use  of  a  public  street  to 
a  railroad  company  for  the  uses  of  the  railroad,  it  is,  I  think, 
clear  that  no  such  use  can  be  made  of  the  streets,  without  the 
consent  of  the  city,  in  the  absence  of  a  legislative  grant  to  that 
effect. 

Nor  is  it  material  whether  the  railroad  company  which  applied 
for  the  privilege,  had  the  power  under  its  charter  to  lay  the 
track.  Application  had  been  duly  made  for  that  purpose,  and 
was  pending.  An  attempt  to  bribe  a  member  of  council  to  vote 
upon  it,  whether  such  attempt  was  made  after  or  before  the  in- 
troduction of  an  ordinance  or  resolution  granting  the  privilege 
asked,  comes  within  the  general  law  against  bribery.  Whether 
the  common  council  had  authority  to  make  the  grant,  or  the 
railroad  company  the  power  to  avail  itself  of  its  benefits,  if  made, 
or  whether  the  offer  of  a  bribe  was  before  or  after  the  applica- 
tion in  due  course  of  proceeding,  had  been  embodied  in  an  ordi- 
nance or  resolution,  is  immaterial.  The  offer  of  anything  of 
value  in  corrupt  payment  or  reward  for  any  official  act,  legisla- 
tive, executive,  or  judicial,  to  be  done,  is  an  indictable  offence  at 
the  common  law. 

The  objections  taken  are  not  tenable,  and  the  motion  to  quash 
must  be  denied. 

Motion  denied. 


Walsch  v.  People,  65  111.  58;  Hutchinson  v.  State,  36  Tex.  293;  State  v. 
Jackson,  73  Me.  91;  State  v.  Purdy,  36  Wis.  213;  Dishon  v.  Smith,  10  la. 
212;  People  v.  Northey,  77  Cal.  618;  Glover  v.  State,  109  Ind.  391;  People 
v.  Markham,  64  Cal.  159;  Minn.  Stat.  1894,  6326,  6327,  6333,  6334,  6348, 


STATE   V.    ELLIS.  261 

6349,  6351,  6355;  N.  Y.  Penal  Code,  Sec.  44,  481;  2  Bish.  Cr.  Law,  85; 
4  Bl.  Com.  *page  139  (Lewis's  Edition);  Clark,  p.  335;  Wharton,  Sec. 
1857;  Hawley  &  McGregor,  p.  258. 


d. 
Crimes  by  and  against  the  Executive  Power. 

Such  acts  as  entering  upon  a  public  office  without  having 
qualified;  asking  or  receiving  bribes,  taking  unlawful  fees, 
intrusion  into  public  office,  etc.,  are  crimes  against  the 
executive  power,  and  provided  for  by  statutory  enactment. 

State  v.  Brown,  12  Minn.  490;  Minn.  Stat.  1894,  Sec.  6325-6338;  N.  Y. 
Penal  Code,  Sec.  42-58. 


e. 


Crimes  against  the  Legislative  Power. 

Such  acts  as  disturbing  legislatures  while  in  session, 
intimidating  members,  altering  drafts  or  engrossed  copies 
of  bills,  bribing  members  and  refusing  to  appear  and  testify 
before  committees,  etc.,  are  crimes  against  the  legislative 
power  and  are  provided  for  by  legislative  enactment. 

Minn.  Stat.  1894,  Sec.  6339-6347;  N.  Y.  Penal  Code,  Sec.  59-70. 


262  SPECIFIC   CRIMES. 


2.  CRIMES  AGAINST  PUBLIC  JUSTICE. 
a. 

Bribery. 

i 

Any  act  thwarting  or  perverting  public  justice,  which  is 
taken  cognizance  of  by  the  code,  is  a  crime;  the  bribery 
of  judicial  officers  being  one  of  the  most  flagrant  crimes 
of  this  class. 

STATE  v.  MILES. 

Supreme  Judicial  Court  of  Maine.  1896. 
36  Atlantic,  70. 

FOSTER,  J.  This  is  an  indictment  at  common  law  for  bribery, 
and  comes  before  this  court  on  demurrer. 

There  are  five  counts  in  the  indictment,  and  in  each  the  re- 
spondent is  alleged  to  have  been  a  public  officer  of  the  city  of 
Portland,  and,  under  color  of  his  office,  to  have  unlawfully,  un- 
justly, and  extorsively  received  bribes  for  neglecting  and  violat- 
ing his  official  duties. 

The  demurrer  being  general,  and  aimed  at  the  indictment  as  a 
whole,  if  any  one  of  the  five  counts  is  sufficient  in  law,  the  de- 
murrer cannot  be  sustained.  Any  one  of  the  counts,  if  good, 
would  be  sufficient  upon  which  to  found  a  verdict,  even  though 
there  may  have  been  other  counts  in  the  same  indictment  that 
were  defective.  State  v.  Burke,  38  Me.  574;  State  v.  Mayberry, 
48  Me.  218;  Bank  v.  Copeland,  72  Me.  220;  Com.  v.  Hawkins, 
3  Gray,  463. 

Bribery  at  common  law  is  the  crime  of  offering  any  undue 
reward  or  remuneration  to  any  public  officer  or  other  person  in- 
trusted with  a  public  duty,  with  a  view  to  influence  his  behavior 
in  the  discharge  of  his  duty. 

The  taking  as  well  as  the  offering  or  receiving  of  such  reward 


STATE  V.   MILES.  263 

constitutes  the  crime,  when  done  with  a  corrupt  intent.  State  v. 
EUis,  33  N.  J.  Law,  102,  97  Am.  Dec.  707,  and  note. 

In  the  case  at  bar  the  corrupt  acceptance  of  the  bribe  is  the 
gist  of  the  offence,  and  this  is  sufficiently  alleged.  It  matters  not 
whether  he  actually  carries  out  the  corrupt  agreement. 

Thus,  in  the  case  of  People  v.  Markham,  64:  Cal.  157,  30  Pac. 
620,  it  was  held  that  a  police  officer,  who  received  money  in  con- 
sideration of  his  promise  not  to  arrest  certain  offenders,  was 
guilty  of  bribery,  and  it  was  not  necessary  to  allege  or  prove  that 
the  crime  was  subsequently  committed,  and  that  the  officer  failed 
to  make  the  arrest. 

It  is  claimed  that  this  indictment  does  not  set  out  the  corrupt 
action  of  the  respondent,  for  which  the  bribe  constituted  the 
inducement,  by  certain  and  definite  allegations,  and  that  the 
words  "for  not  arresting,"  and  kindred  expressions  in  the  several 
counts,  do  not  amount  to  allegation,  but  leave  the  corrupt  motive 
of  the  respondent  to  inference  rather  than  averment.  It  is  true 
that,  in  indictments,  the  want  of  a  direct  and  positive  allegation, 
in  the  description  of  the  substance,  nature,  or  manner  of  the  of- 
fence, cannot  be  supplied  by  any  intendment,  argument,  or  im- 
plication, and  that  the  charge  must  be  laid  positively,  and  not  by 
way  of  recital  merely.  State  v.  Paul,  69  Me.  215.  But  in  this 
case  we  think  the  indictment  is  not  defective  in  the  respect 
claimed.  It  is  distinctly  and  affirmatively  alleged  that  the  bribes 
were  received,  and  the  alleged  inducement  or  purpose  for  which 
these  bribes  were  received  is  stated  in  the  proposition  clauses 
commencing  with  the  words  "for  not  arresting,"  etc.  We  think 
this  is  sufficient.  The  meaning  is  clear.  The  substantive  part  of 
the  offence,  accepting  the  bribes,  is  affirmatively  alleged,  and 
the  purpose,  object,  or  inducement  is  sufficiently  set  forth  to  meet 
the  requirements  of  criminal  pleading.  It  is  as  strongly  asserted 
as  it  would  be  had  the  indictment  stated  that  the  money  was  ac- 
cepted as  a  bribe  to  induce  the  respondent  to  refrain  from  doing 
an  act  which  it  was  his  official  duty  to  perform. 

It  cannot  be  said  that  the  allegations,  as  contained  in  the  in- 
dictment, may  all  be  true,  and  yet  no  offence  committed,  as  in 
State  v.  Godfrey,  24  Me.  232.% 

The  allegation  in  reference  to  the  lottery,  scheme,  or  device  of 
chance,  mentioned  in  the  first  and  second  counts,  in  which  the 


264  SPECIFIC   CRIMES. 

party  to  be  arrested  was  concerned,  is  sufficient.  The  corrupt  ac- 
ceptance of  a  bribe  by  the  respondent  is  the  gist  of  this  prosecu- 
tion, rather  than  the  facts  necessary  to  be  alleged  for  being  un- 
lawfully concerned  in  a  lottery.  State  v.  Lang,  63  Me.  215, 
219,  220. 

The  same  reasoning  applies  to  the  remaining  counts,  and  the 
demurrer  was  properly  overruled. 

Exceptions  overruled. 

Minn.  Stat.  1894,  Sec.  6348-6357;  N.  Y.  Penal  Code,  Sees.  71-167; 
Wharton,  Sec.  3117. 


b. 
Perjury. 

Perjury  is  the  willful  and  false  giving  of  material  testi- 
mony under  a  legally  administered  oath  in  a  judicial  pro- 
ceeding; or  in  a  case  where  an  oath  is  required  by  statute. 

MILLER  v.  FLORIDA. 

Supreme  Court  of  Florida,  1876. 
15  Fla.  577. 

ON  November  24,  1875,  John  Miller,  the  plaintiff  in  error, 
was  duly  arraigned  and  tried  in  the  Circuit  Court  of  the  Third 
Judicial  District,  held  in  and  for  Madison  county,  on  an  indict- 
ment for  perjury. 

The  indictment  charged  that  on  the  20th  day  of  October, 
1874,  at  a  Circuit  Court  held  at  the  court-house  in  the  county 
of  Madison,  one  Jerry  Grimes  was  being  tried  upon  an  indict- 
ment for  feloniously  procuring  a  felony  to  be  committed  by  one 
Isaiah  Phillips,  charged  with  the  crime  of  forgery.  That  this 
John  Miller  was  called  and  appeared  as  a  juror;  that  he  was 
challenged  and  sworn  by  the  judge  touching  his  qualifications  as 
such  juror.  That  it  became  a  material  question  and  subject  of 
inquiry  whether  the  said  John  Miller  was  related  to  the  accused, 


MILLER  V.    FLORIDA.  265 

Jerry  Grimes.  That  the  said  John  Miller,  intending  to  deceive 
the  said  court,  unlawfully,  falsely,  knowingly,  willfully  and 
corruptly,  did  swear  that  he  was  not  related  to  the  said  Jerry 
Grimes,  when,  in  fact,  at  that  time,  he  was  the  father-in-law  of 
the  said  Jerry  Grimes.  That  he  so  swore  for  the  purpose  of  caus- 
ing the  said  Jerry  Grimes  to  be  wrongfully  acquitted  on  the  said 
indictment,  and  for  no  other  purpose  whatever.  That  said  John 
Miller  knowingly,  willfully  and  corruptly  did  commit  willful 
and  corrupt  perjury. 

On  the  trial  of  the  cause,  the  counsel  for  the  accused  took  cer- 
tain exceptions  to  the  rulings  of  the  court,  which,  having  been 
duly  settled  and  signed  by  the  Circuit  Judge,  appear  in  the  re- 
turn to  the  writ  of  error  in  the  following  words: 

I.  On  the  trial  of  the  case,  after  the  State  had  rested  the  de- 
fendant, the  party  accused,  claimed  and  insisted  upon  the  right 
of  making  a  statement  to  the  jury,  under  oath,  of  the  matter  of 
his  defence.  Whereupon,  the  court  refused  to  allow  him  to  do  so, 
unless  he  was  put  up  as  a  witness,  subject  to  cross-examination. 

To  which  ruling  of  the  court  the  said  accused  excepted. 

II.  The  court,  among  other  things,  charged  the  jury  that  if 
they  believed  from  the  testimony  that  the  accused  took  the  oath, 
and  that  it  was  false,  the  accused  was  guilty. 

To  which  the  accused  excepted  on  the  ground  that  the  court 
should  have  charged  that,  if  the  accused  took  the  oath,  and  it 
was  knowingly,  willfully  and  corruptly  false,  they  might  find 
a  verdict  of  guilty. 

III.  The  accused  offered  to  make  a  statement  of  the  matter  of 
his  defence,  on  oath,  before  the  jury,  which  defence  was  (in 
substance)  as  stated  to  the  court:    "That  it  was  true  that  Jerry 
Grimes  married  the  daughter  of  the  accused,  but  that  soon  after 
their   marriage    said     Grimes    ill-treated    his    daughter    and 
abandoned  her.   That  he  had  for  several  years  been  compelled  to 
support  his  daughter  and  child.  That  Jerry  Grimes  had  gone  off, 
and  he  did  not  consider  he  was  anything  to  him  or  his  family. 
That  when  the  accused  was  asked  on  his  voir  dire  whether  or  not 
he  was  related   to   the   prisoner   at  the  bar,  Jerry  Grimes,  he 
answered  he  was  not,  being  at  the  time  of  the  taking  the  said 
oath  under  the  bona  fide  impression  and  conviction  that,  as  he, 
the  said  Jerry  Grimes,  had  left  his  wife,  etc.,  as  aforesaid,  he 


266  SPECIFIC   CRIMES. 

really  was  not  related  to  the  accused,  Jerry  Grimes.  That  he 
made  oath  to  what  he  ignorantly  supposed  to  be  true,  and  thus 
that  he  did  not  willfully  and  corruptly  make  said  oath." 

The  court  refused  to  allow  the  accused  to  make  such  a  defence, 
either  as  a  statement  or  otherwise,  on  the  ground,  as  the  court 
said,  of  its  irrelevancy,  and  that  if  the  same  was  true  it  would  be 
no  defence,  as  ignorance  of  law  was  no  excuse. 

To  which  the  accused  excepted. 

The  jury  found  the  prisoner  guilty  of  perjury.  The  counsel 
for  the  accused  moved  for  a  new  trial  upon  the  errors  so  alleged, 
and  also  upon  the  further  grounds  that  the  verdict  of  the  jury 
was  contrary  to  law,  and  because  the  jury  was  misled  by  the 
charge  of  the  court. 

The  motion  for  new  trial  was  denied,  and  the  court  proceeded 
to  sentence  the  prisoner  to  State  prison  for  the  term  of  ten  years. 

The  accused  brings  the  cause  into  this  court  by  writ  of  error. 

VAN  VALKENBURGH,  J.,  delivered  the  opinion  of  the  court. 

On  the  trial  of  this  case,  and  after  the  State  had  rested,  the 
counsel  for  the  accused  offered  the  statement  of  the  prisoner, 
under  oath,  as  to  the  matter  of  his  defence,  which  the  court  re- 
fused to  allow,  unless  he  was  put  upon  the  stand  as  a  witness, 
subject  to  cross-examination. 

The  statute  of  1865,  Chapter  1472,  Section  4,  provides  that 
"in  all  criminal  prosecutions,  the  party  accused  shall  have  the 
right  of  making  a  statement  of  the  matters  of  his  or  her  defence, 
under  oath,  before  the  jury,  when,  in  the  opinion  of  the  court, 
the  ends  of  justice  shall  so  require." 

Under  this  act,  it  was  in  the  discretion  of  the  court  to  permit 
the  accused  to  make  such  a  statement,  depending  entirely  upon 
the  question  as  to  whether  the  "ends  of  justice  shall  so  require." 

The  making  of  such  a  statement  under  oath  does  not  neces- 
sarily constitute  the  accused  a  witness,  nor  does  it  subject  him  to 
the  rules  applicable  to  witnesses  making  him  liable  to  cross-ex- 
amination. It  is  simply  a  presentation  verbally,  in  his  own  lan- 
guage and  manner,  of  the  matters  pertaining  to  his  defence,  of 
such  facts  and  circumstances  surrounding  the  case  as  will  go  to 
excuse  the  offence  and  negative  the  idea  of  willful  or  corrupt 
intent.  It  is  for  the  jury  alone,  and  is  to  be  taken  into  considera- 


MILLER  V.   FLORIDA.  267 

tion  by  them,  in  connection  with  all  of  the  evidence  in  the  case, 
and  to  be  allowed  such  weight,  and  such  only,  as  they,  in  their 
judgment,  may  see  fit  to  give  it. 

In  the  case  of  Barber  v.  The  State  (13  Fla.  681),  where  the 
error  alleged  was,  that  "the  court  charged  the  jury  that  the  state- 
ment of  the  defendant  is  not  evidence,  and  that  they  could  not 
take  such  statement  into  consideration  as  evidence,"  the  court 
says:  "There  was  some  purpose  to  be  subserved  more  than  the 
mere  amusement  of  the  jury  in  allowing  the  statement  to  be 
made.  It  is  the  jury  alone  who  are  entitled  to  consider  the  state- 
ment, and  if  it  be  remarked  upon  at  all,  it  should  be  to  suggest  to 
the  jury,  in  effect,  that  they  are  to  attach  to  it  such  importance, 
in  view  of  the  nature  of  the  offence  charged,  and  of  the  testi- 
mony before  them,  as  in  their  good  judgment  it  is  entitled  to. 
It  is  for  their  consideration  alone,  and  they  may  disregard  it  en- 
tirely." And  again:  "The  defendant  is  entitled,  when  per- 
mitted to  make  the  statement,  to  the  benefit  or  disadvantage  of 
such  impression  as  he  may  be  able  to  make  upon  the  judgment  of 
the  jury." 

This  statute,  however,  of  1865,  was  repealed  by  Chapter  1816 
of  the  laws  of  1870.  This  is  an  act  entitled  "An  act  concerning 
testimony,"  embodied  in  a  single  section,  and  reads  as  follows: 
"In  the  courts  of  Florida,  there  shall  be  no  exclusion  of  any  wit- 
ness in  a  civil  action  because  he  is  a  party  to  or  interested  in  the 
issue  tried.  In  all  the  criminal  prosecutions,  the  party  accused 
shall  have  the  right  of  making  a  statement  to  the  jury,  under 
oath,  of  the  matter  of  his  or  her  defence." 

This  takes  from  the  court  the  discretion  allowed  by  the  statute 
of  1865,  and  the  unqualified  right  of  the  accused  to  make  such  a 
statement,  under  oath,  to  the  jury,  is  established  by  law. 

Had  it  been  the  intention  of  the  legislature  to  provide  that 
the  accused  should  make  himself  a  witness,  subject  to  the  rules 
controlling  in  the  examination  of  witnesses,  there  would  have 
been  no  necessity  for  the  second  paragraph  in  the  section  where 
this  provision  is  found.  A  slight  change  of  the  first  portion  of  the 
section  would  have  covered  every  case  of  civil  action  or  criminal 
prosecution. 

The  second  ground  of  error  is:  "The  court,  among  other 
things,  charged  the  jury  that  if  they  believed,  from  the  testi- 


268  SPECIFIC   CRIMES. 

mony,  that  the  accused  took  the  oath,  and  that  it  was  false,  the 
accused  was  guilty." 

Perjury  is  defined  in  the  elementary  books  to  be  the  taking 
of  a  willfully  false  oath  by  one  who,  being  lawfully  sworn  by  a 
competent  court  to  depose  the  truth  in  any  judicial  proceeding, 
swears  absolutely  and  falsely,  in  a  matter  material  to  the  point  in 
question,  whether  he  be  believed  or  not.  Our  statute,  in  accord- 
ance with  this  definition  of  perjury,  in  an  "act  to  provide  for  the 
punishment  of  crime  and  proceedings  in  criminal  cases,"  passed 
in  1868,  says:  "Whoever,  being  authorized  or  required  by  law 
to  take  an  oath  or  affirmation,  willfully  swears  or  affirms,  falsely, 
in  regard  to  any  material  matter  or  thing  respecting  which  such 
oath  or  affirmation  is  authorized  or  required,  shall  be  deemed 
guilty  of  perjury,"  etc. 

It  will  be  seen  that  both  at  common  law  and  by  statute  in  this 
State,  the  rule  is  the  same,  or,  in  other  words,  that  the  common 
law  definition  of  the  crime  of  perjury  is  made  a  portion  of  the 
statutes,  and  that  the  oath  must  not  only  be  false,  but  that  it 
must  be  willfully  false,  and  to  matter  material  to  the  issue.  It 
is  necessary  so  to  charge  the  offence  in  the  indictment,  or  there 
is  no  crime  alleged.  An  oath  may  be  false,  and  still  not  willfully 
false,  so  as  to  constitute  the  crime  of  perjury.  2  Bishop  Grim. 
Law,  Sec.  1046.  See,  also,  Commonwealth  v.  Brady,  5  Gray,  78. 

It  may  also  be  to  an  immaterial  matter  or  thing,  one  not 
material  to  the  issue,  in  which  case  it  could  not  be  held  as  a 
willful  false  oath.  1  Hawkins  P.  C.,  C.  27,  page  431. 

In  some  cases,  where  a  false  oath  has  been  taken,  the  party 
was  punished  by  indictment  at  common  law  for  a  misdemeanor, 
though  the  offence  did  not  amount  to  perjury.  2  Russell  on 
Crimes,  603;  2  Bishop  C.  L.,  Sec.  1014. 

It  is  said  "the  false  oath  must  be  willful  and  taken  with  some 
degree  of  deliberation;  for  if,  upon  the  whole  circumstances  of 
the  case,  it  shall  appear  probable  that  it  was  owing  rather  to  the 
weakness  than  perverseness  of  the  party,  as  where  it  was  oc- 
casioned by  surprise,  or  inadvertency,  or  a  mistake  of  the  tnie 
state  of  the  question,  it  cannot  but  be  hard  to  make  it  amount 
to  voluntary  and  corrupt  perjury,  which  is  of  all  crimes  whatso- 
ever the  most  infamous  and  detestable."  1  Hawkins,  P.  C.,  C. 
27,  Sec.  2;  2  Russell  on  Crimes,  597. 


MILLER  V.   FLORIDA.  269 

A  false  oath,  taken  by  inadvertence  or  mistake,  cannot  amount 
to  voluntary  and  corrupt  perjury.  2  Wharton  C.  L.,  Sec.  2199. 

On  the  other  hand,  it  has  been  held  that  a  man  may  be  guilty 
of  perjury  if  he  swears  to  a  particular  fact  without,  at  the  time, 
knowing  whether  it  be  true  or  false.  It  is  no  defence  that  the 
oath  so  taken  is  true,  if  the  party  swears  to  it  willfully  and  cor- 
ruptly, and  has  no  probable  ground  for  the  oath.  1  Hawkins  P. 
C.,  C.  27,  page  433;  People  v.  McKenney,  3  Parker  C.  R.  510. 

It  will  thus  be  seen  that  there  is  a  difference  between  a  willful 
false  oath,  constituting  the  crime  of  perjury,  and  a  false  oath 
which,  at  common  law,  might  be  punished  as  a  misdemeanor. 
The  one  is  stubborn  and  corrupt,  while  the  other  is  simply  not 
true,  lacking  the  elements  which  go  to  constitute  the  crime  of 
perjury  as  defined  by  our  statute.  The  jury  must  find  that  the 
accused  was  guilty  of  taking  a  willfully  false  oath,  and  in  relation 
to  matter  material  to  the  issue,  in  order  to  convict  him  of  the 
crime  of  perjury  and  to  render  him  liable  to  the  punishment 
prescribed  for  that  offence,  and  to  this  end  the  court  should  have 
so  charged  them. 

The  third  ground  of  error  assigned  is  similar  to  and  embraced 
in  the  first,  that  the  court  refused  to  permit  the  accused  to  make 
his  statement  of  the  matters  of  his  defence,  on  oath,  before  the 
jury.  The  accused,  at  the  same  time  of  making  such  offer,  stated 
to  the  court  the  substance  of  the  statement  so  proposed  to  be 
made.  The  court  refused  to  grant  the  request  upon  the  ground 
of  irrelevancy,  and  said  that  if  the  facts  so  proposed  to  be  stated 
to  the  jury  were  true,  it  was  no  defence.  This  point  has  been  dis- 
posed of  under  the  first  above  assignment  of  error,  where  we 
hold  that  the  accused,  under  the  statute,  has  a  right  to  make  a 
statement  of  the  matter  of  his  defence,  on  oath,  before  the  jury. 
We  cannot  see  how  such  a  statement  as  is  offered  by  the  accused 
would  be  irrelevant.  It  related,  certainly,  to  the  matter  of  his 
defence;  to  the  question,  which  the  jury  must  determine,  of  the 
intent.  Was  the  oath  alleged  to  have  been  taken  by  the  accused 
willfully  false?  or  was  it  taken  through  inadvertence,  and  not 
with  a  corrupt  motive?  It  would  go  for  what  it  was  worth,  and 
while  it  might  not  strictly  be  a  defence  to  the  prosecution,  yet 
the  accused  had  a  right  to  its  consideration  by  the  jury,  whose 
judgment  might  have  been  influenced  in  his  favor  by  it.  "It 


270  SPECIFIC   CRIMES. 

would  give  to  the  jury  for  their  consideration  the  facts  upon 
which  his  oath  was  based,  and  the  reasons  operating  upon  his 
mind,  and,  from  those  facts  and  reasons  they  might  determine 
the  motives,  if  any,  influencing  him.  We  think  it  should  have 
been  admitted  by  the  court. 

The  judgment  must  be  reversed  and  a  new  trial  awarded. 

Com.  v.  Brady,  5  Gray  78;  U.  S.  v.  Babcock,  4  McLean  113;  Alexander 
v.  State,  3  Dev.  470;  Cothran  v.  State,  39  Miss.  541;  Carpenter  v.  State, 
4  How.  (Miss.)  163;  State  r.  Higglns,  124  Mo.  640;  Nelson  v.  State,  32 
Ark.  192;  People  v.  Dishler,  38  Hun.  175;  U.  S.  v.  Stanley,  6  McLean 
409;  State  v.  McKinney,  42  la.  205;  State  v.  Wakefield,  73  Mo.  554;  Com. 
v.  Smith,  11  Allen  243;  State  v.  Hawkins,  20  S.  B.  623;  Misener  v.  State, 
31  S.  W.  858;  Craven  v.  State,  28  S.  W.  472;  Weaver  v.  State,  31  S.  W. 
400;  Johnson  v.  State,  31  S.  W.  397;  Com.  v.  Knight,  12  Mass.  274; 
White  v.  State,  9  Miss.  149;  Martin  v.  Miller,  4  Mo.  47;  State  v.  Ammons, 
3  Murph.  123;  State  v.  Dodd,  3  Murph.  226;  State  v.  Chandler,  42  Vt. 
446;  Henderson  v.  State,  117  111.  265;  Pollard  v.  State,  69  111.  148;  N.  Y. 
Penal  Code,  Sec.  96-113;  Minn.  Stat.  1894,  Sec.  6371-6378;  Clark,  p.  330; 
Bish.  I.,  Sec.  468;  Wharton,  Sec.  1245;  Hawley  &  McGregor,  p.  245;  The 
Penal  Code  of  Pa.;  Shields,  vol.  I.,  191. 

Proceeding  must  be  judicial:  Chapman  v.  Gillet,  2  Conn.  40; 
Arden  v.  State,  11  Conn.  408;  State  v.  Stephenson,  4  McCord  165; 
Mahan  v.  Perry,  5  Mo.  21;  State  v.  Warden,  11  Mete.  406;  State  v. 
Lamden,  5  Humph.  83;  State  v.  Alexander,  4  Hawks.  182;  State  v. 
Wyatt,  2  Hayw.  56;  State  v.  Keene,  26  Me.  33;  State  v.  McCroskey,  3 
McCord  308;  State  v.  Chamberlain,  30  Vt.  559;  Clark,  p.  331;  Bishop  I., 
Sec.  468;  Wharton,  Sec.  1292;  Hawley  &  McGregor,  p.  248. 

Required  by  statute:  Silver  v.  State,  17  Ohio  365;  State  v.  McCarthy, 
41  Minn.  59;  State  v.  Cannon,  79  Mo.  343;  State  v.  Whittemore,  50  N.  H. 
245;  State  v.  Rump,  30  Pa.  475;  U.  S.  v.  Kendrick,  2  Mason  69;  U.  S.  v. 
Babcock,  4  McLean  113;  Warwick  v.  State,  25  Ohio  St.  21;  State  v. 
Foulks,  57  Mo.  461;  State  v.  Belew,  79  Mo.  584. 

Legally  administered:  State  v.  McCroskey,  3  McCord  308;  State  v. 
Furlong,  26  Me.  69;  State  v.  Knight,  12  Mass.  274;  State  t?.  Fasset,  16 
Conn.  457;  Arden  v.  State,  11  Conn.  408;  Conner  v.  Commonwealth,  2 
Va.  Gas.  30;  State  v.  Pankey,  1  Scam.  80;  State  v.  Lamden,  5  Humph. 
83;  Steinson  v.  State,  6  Yerg.  530;  State  v.  Crumb,  68  Mo.  206;  State  v. 
Wymberly,  40  La.  Ann.  460;  Maynard  v.  People,  135  111.  416;  State  v. 
Wilson,  87  Tenn.  693;  State  v.  Van  Dusen,  78  111.  645;  Wharton,  Sec. 
1251. 

NOTE. — Subornation  of  perjury  is  the  procuring  of  perjured  testimony. 
Com.  v.  Douglass,  5  Mete.  (Mass.)  241;  Stewart  v.  State,  22  Ohio  St. 
477;  People  v.  Ross,  103  Cal.  425;  Minn.  Stat.  1894,  Sec.  6379-6380. 


MILLER   V.   FLORIDA.  271 

NOTE  c.— Forging,  stealing,  falsifying  public  records,  are  made  crimi- 
nal acts  by  statute. 

Minn.  Stat.  1894,  Sees.  6369-6370;  Clark,  p.  330;  Bish.  I.,  Sec.  468; 
Wharton,  Sec.  3329;  Hawley  &  McGregor,  p.  251. 

NOTE.— Falsifying  any  evidence  is  made  a  felony,  and  destroying  any 
evidence  a  misdemeanor,  by  statute. 

Minn.  Stat.  1894,  Sees.  6381-6383;  N.  Y.  Penal  Code,  Sees.  107-113. 

NOTE  d.— Rescue.  Rescue  is  the  deliverance  of  a  person  from  lawful 
custody  by  any  third  person,  and  is  a  felony  or  misdemeanor,  according 
to  the  crime  with  which  the  prisoner  is  charged. 

People  v.  Tompkins,  9  Johns.  70;  4  Bl.  Com.  131;  N.  Y.  Code,  Sees.  82- 
83;  Minn.  Stat.  1894,  Sees.  6358-6359;  Clark,  p.  327;  Bish.  I.,  Sec.  466  (1); 
Wharton,  Sec.  1680;  Hawley  &  McGregor,  p.  263. 

NOTE  e. — Escapes.  (1)  By  an  officer  or  other  person  voluntarily  or 
negligently  permitting  a  prisoner  to  escape  from  lawful  custody.  (2)  By 
a  prisoner  where  he,  without  breaking  prison,  escapes  from  lawful  cus- 
tody. By  some  statutes  such  prisoner  is  guilty  of  a  misdemeanor,  if 
held  for  a  misdemeanor,  and  a  felony,  if  held  for  felony. 

N.  Y.  Penal  Code,  Sees.  30,  84,  89;  Minn.  Stat.  1894,  Sec.  6361;  Clark, 
p.  326;  Bish.  I.,  Sec.  466  (2);  Wharton,  Sec.  1667. 

NOTE.— By  some  statutes  an  attempt  to  escape  from  states  prison  is 
a  felony. 

Minn.  Stat.  1894,  Sec.  6362. 

NOTE.— By  some  statutes  a  person  who  assists  a  prisoner  to  escape 
from  lawful  custody  is  guilty  of  a  misdemeanor  if  the  prisoner  is  held 
for  misdemeanor,  and  felony  if  held  for  felony. 

Minn.  Stat.  1894,  Sec.  6363. 

NOTE.— An  officer  permitting  such  an  escape,  if  willfully  or  corruptly 
done,  is  guilty  of  a  felony,  in  any  other  case  of  a  misdemeanor. 

Minn.  Stat.  1894,  Sec.  6365;  Wharton,  Sec.  1667. 

NOTE  f . — Prison  breach.  Prison  breach  is  the  breaking  and  exit  of  a 
prisoner  from  lawful  confinement.  If  confined  for  a  felony,  the  prison 
breach  is  a  felony;  if  for  a  misdemeanor,  it  is  a  misdemeanor. 

Minn.  Stat.  1894,  Sec.  6361;  State  v.  Leach,  7  Conn.  452;  Com.  v.  Fil- 
burn,  119  Mass.  297;  Oleson  v.  State,  20  Wis.  62;  Bish.  I.,  Sec.  466  (2); 
Clark,  p.  327;  Wharton,  Sec.  1672;  Hawley  &  McGregor,  p.  262. 

NOTE. — Some  statutes  made  those  aiding  in  such  prison  breach  a 
felony  if  the  prisoner  is  confined  for  a  felony,  and  a  misdemeanor  if 
confined  for  a  misdemeanor. 

Minn.  Stat.  1894,  Sec.  6363;  Clark,  p.  329;  Bish.  I.,  Sec.  697;  Wharton, 
Sec.  1677;  Hawley  &  McGregor,  p.  261. 

NOTE.— An  officer,  if  he  aids  willfully  such  a  prison  breach,  is  guilty 
of  a  felony.  If  it  is  accomplished  merely  through  the  negligence  of  the 
officer,  he  is  guilty  of  a  misdemeanor. 

Minn.  Stat.  1894,  Sec.  6365;  Clark,  p.  327;  Hawley  &  McGregor,  p.  262. 


272  SPECIFIC   CBIMES. 


3.  CRIMES  AGAINST  THE  PERSON. 

Crimes  against  the  person  are  such  acts  as  are  injurious 
to  the  personal  security  of  individuals,  which  are  taken 
cognizance  of  by  the  common  law  or  the  statutes. 

a. 
Homicide. 

Homicide  is  the  killing  of  a  human  being  and  is  justifi- 
able, excusable  or  felonious. 

Minn.  Stat.  1894,  Sec.  6433;  May,  Cr.  Law,  218;  Clark,  p.  127;  N.  Y. 
Penal  Code,  Sees.  179-180;  May,  Sec.  218;  Wharton,  Sec.  303  et  scq.; 
Hawley  &  McGregor,  p.  119;  The  Penal  Code  of  Pa.;  Shields,  vol.  I., 
227. 


(1)  Elements. 
(a)  Human  Being. 

The  victim  must  be  a  human  being,  a  person  in  ease  at 
the  time  of  the  killing. 

STATE  v.  WINTHROP. 

Supreme  Court  of  Iowa,  1876. 
43  la.  519. 

ADAMS,  J.  The  defendant  is  a  physician,  and  was  employed 
by  one  Roxia  Clayton  to  attend  her  in  childbirth.  The  child  died. 
The  defendant  is  charged  with  having  produced  its  death. 
Evidence  was  introduced  by  the  State  tending  to  show  that  the 
child,  previous  to  its  death,  respired  and  had  an  independent 
circulation.  Evidence  was  introduced  by  the  defendant  tending 
to  disprove  such  facts. 


STATE  V.   WINTHEOP.  273 

The  defendant  asked  the  court  to  give  the  following  instruc- 
tion: 

"To  constitute  a  human  being,  in  the  view  of  the  law,  the  child 
mentioned  in  the  indictment  must  have  been  fully  born,  and 
born  alive,  having  an  independent  circulation  and  existence 
separate  from  the  mother,  but  it  is  immaterial  whether  the 
umbilical  cord  which  connects  it  with  its  mother  be  severed  or 
not." 

The  court  refused  to  give  this  instruction,  and  gave  the  fol- 
lowing : 

"If  the  child  is  fully  delivered  from  the  body  of  the  mother, 
while  the  after  birth  is  not,  and  the  two  are  connected  by  the 
umbilical  cord,  and  the  child  has  independent  life,  no  matter 
whether  it  has  breathed  or  not,  or  an  independent  circulation 
has  been  established  or  not,  it  is  a  human  being,  on  which  the 
crime  of  murder  may  be  perpetrated." 

The  giving  of  this  instruction,  and  the  refusal  to  instruct  as 
asked,  are  assigned  as  error. 

The  court  below  seems  to  have  assumed  that  a  child  may  have 
independent  life,  without  respiration  and  independent  circula- 
tion. The  idea  of  the  court  seems  to  have  been  that  the  life 
which  the  child  lives  between  the  time  of  its  birth  and  the  time 
of  the  establishment  of  respiration  and  independent  circulation 
is  an  independent  life.  Yet  the  position  taken  by  the  attorney- 
general,  in  his  argument  in  behalf  of  the  State,  is  fundamentally 
different.  He  says :  "It  will  probably  not  be  contended  that  inde- 
pendent life  can  exist  without  independent  circulation,  and 
hence  the  existence  of  the  former  necessarily  presumes  the  exist- 
ence of  the  latter,  and  so  other  or  further  proof  is  unnecessary." 
He  further  says:  "The  instruction  complained  of  amounts  to 
nothing  more  than  the  statement  that,  if  the  child  had  an  inde- 
pendent life,  then  it  was  not  necessary  to  establish  those  facts 
upon  which  the  existence  of  life  necessarily  depends."  If  such 
was  the  meaning  of  the  court  below,  the  language  used  to  express 
it  was  very  unfortunate.  The  court  said  that,  if  the  child  had 
independent  life,  it  is  no  matter  whether  an  independent  circula- 
tion had  been  established  or  not.  The  attorney-general  says  that 
if  the  child  had  independent  life,  it  had  independent  circulation, 
of  course.  But  whether  we  take  the  one  view  or  the  other,  we 
18 


274  SPECIFIC   CRIMES. 

think  the  instruction  was  wrong.  We  will  consider  first  the  view 
that  independent  life  and  independent  circulation  necessarily 
co-exist,  and  examine  the  instruction  as  if  that  were  conceded. 

It  follows  that  where  a  child  is  born  alive,  and  the  umbilical 
cord  is  not  severed,  and  independent  circulation  has  not  been 
established,  independent  life  is  impossible,  and  the  instruction 
amounts  to  this,  that  if  the  jury  should  find  independent  life 
under  such  circumstances,  although  it  would  be  impossible,  they 
might  find  the  killing  of  the  child  to  be  murder.  Such  an  instruc- 
tion could  serve  no  valuable  purpose,  and  would  necessarily  in- 
volve the  jury  in  confusion.  It  would  do  worse  than  that;  it 
would  tell  the  jury  in  effect  that  they  might  find  independence 
of  life  in  utter  disregard  of  the  conditions  in  which  alone  it 
could  exist  To  show  how  the  defendant  was  prejudiced,  if  the 
instruction  is  to  be  viewed  in  this  light,  we  may  say  that  there 
was  evidence  that  the  ductus  arteriosus  was  not  closed.  This 
evidence  tended  to  show,  slightly  at  least,  that  independent 
circulation  had  not  been  established.  The  instruction  told  the 
jury,  by  implication,  that  they  might  disregard  this  evidence. 
But  we  feel  compelled  to  say  that  we  do  not  think  that  the  at- 
torney-general's interpretation  of  the  instruction  ever  occurred 
to  the  court  below.  It  is  plain  to  see  that  the  court  below  meant 
that  independent  life  is  not  conditioned  upon  independent  circu- 
lation. The  error,  if  there  was  one,  consisted  in  assuming  that  it 
was  not.  The  question  presented  for  our  determination  is  by  no 
means  free  from  difficulty.  Can  the  child  have  an  independent 
life,  while  its  circulation  is  still  dependent  upon  the  mother? 
There  are  two  senses  in  which  the  word  independence  may  be 
used.  There  is  actual  independence,  and  there  is  potential  in- 
dependence. A  child  is  actually  independent  of  its  father  when  it 
is  earning  its  own  living;  it  is  potentially  independent  when  it  is 
capable  of  earning  its  own  living.  We  think  the  court  below 
used  the  word  independent  in  the  latter  sense.  While  the  blood 
of  the  child  circulates  through  the  placenta,  it  is  renovated 
through  the  lungs  of  the  mother.  In  such  sense  it  breathes 
through  the  lungs  of  the  mother.  Wharton  &  Stille's  Medical 
Jurisprudence,  2  vol.,  sec.  128.  It  has  no  occasion  during  that 
period  to  breath  through  its  own  lungs.  But  when  the  resource 
of  its  mother's  lungs  is  denied  it,  then  arises  the  exigency  of  es- 


STATE  V.   WINTHROP.  275 

tablishing  independent  respiration  and  independent  circulation. 
Children,  it  seems,  oftentimes  do  not  breathe  immediately  upon 
being  born,  but  if  the  umbilical  cord  is  severed,  they  must  then 
breathe  or  die.  Cases  are  recorded,  it  is  true,  where  a  child  has- 
been  wholly  severed  from  the  mother,  and  respiration  has  not 
apparently  been  established  until  after  the  lapse  of  several 
minutes  of  time.  During  that  time  it  must  have  had  circulation, 
and  the  circulation  was  independent.  Whether  it  had  inappreci- 
able respiration,  or  was  in  the  condition  of  a  person  holding  his 
breath,  is  a  question  not  necessary  to  be  considered  for  the  deter- 
mination of  this  case.  It  is  sufficient  to  say,  that  while  the 
circulation  of  the  child  is  still  dependent,  its  connection  with  the 
mother  may  be  suddenly  severed  by  artificial  means,  and  the 
child  not  necessarily  die.  This  is  proven  by  what  is  called  the 
Csesarean  operation.  A  live  child  is  cut  out  of  a  dead  mother  and 
survives.  Such  a  child  has  a  potential  independence  antecedent 
to  its  actual  independence.  So  a  child  which  has  been  born,  but 
has  not  breathed,  and  is  connected  with  the  mother  by  the  um- 
bilical cord,  may  have  the  power  to  establish  a  new  life  upon  its 
own  resources  antecedent  to  its  exercise.  According  to  the 
opinion  of  the  court  below,  the  killing  of  the  child  at  that  time 
may  be  murder.  It  is  true  that  after  a  child  is  born  it  can  no 
longer  be  called  a  foetus,  according  to  the  ordinary  meaning  of 
that  word.  Beck  says,  however,  in  his  Medical  Juris.,  1  vol., 
498:  "It  must  be  evident  that  when  a  child  is  born  alive,  but  has 
not  yet  respired,  its  condition  is  precisely  like  that  of  the 
foetus  in  utero.  It  lives  merely  because  the  foetal  circulation  is 
still  going  on.  In  this  case  none  of  the  organs  undergo  any 
change."  Casper  says,  in  his  Forensic  Medicine,  3  vol.,  33 :  'In 
foro  the  term  'life'  must  be  regarded  as  perfectly  synonymous- 
with  'respiration.'  Life  means  respiration.  Not  to  have  breathed 
is  not  to  have  lived." 

While,  as  we  have  seen,  life  has  been  maintained  independent 
of  the  mother  without  appreciable  respiration,  the  quotations 
above  made  indicate  how  radical  the  difference  is  regarded  be- 
tween foetal  life  and  the  new  life  which  succeeds  upon  the 
establishment  of  respiration  and  independent  circulation. 

If  we  turn  from  the  treatises  on  Medical  Jurisprudence  to  the 
reported  decisions,  we  find  this  difference,  which  is  so  empha- 


276  SPECIFIC   CRIMES. 

sized  in  the  former,  made  in  the  latter  the  practical  test  for  de- 
termining when  a  child  becomes  a  human  being  in  such  a  sense 
as  to  become  the  subject  of  homicide.  In  Rex  v.  Enoch,  5  C.  & 
P.,  539,  Mr.  Justice  J.  Parke  said:  "The  child  might  have 
breathed  before  it  was  born,  but  its  having  breathed  is  not  suf- 
ficiently life  to  make  the  killing  of  the  child  murder.  There  must 
have  been  an  independent  circulation  in  the  child,  or  the  child 
cannot  be  considered  as  alive  for  this  purpose." 

In  Regina  v.  Trilloe,  1  Carrington  &  Marshman,  650,  Erskine, 
J.,  in  charging  the  jury,  said:  "If  you  are  satisfied  that  this  child 
had  been  wholly  produced  from  the  body  of  the  prisoner  alive, 
and  that  the  prisoner  willfully  and  of  malice  aforethought 
strangled  the  child,  after  it  had  been  so  produced,  and  while 
it  was  alive,  and  while  it  had  an  independent  circulation  of  its 
own,  I  am  of  the  opinion  that  the  charge  is  made  out  against  the 
prisoner."  See,  also,  Greenleaf  on  Ev.,  3  vol.,  sec.  136. 

It  may  be  asked  why,  if  there  is  a  possibility  of  independent 
life,  the  killing  of  such  a  child  might  not  be  murder. 

The  answer  is,  that  there  is  no  way  of  proving  that  such  possi- 
bility existed  if  actual  independence  was  never  established.  Any 
verdict  based  upon  such  finding  would  be  the  result  of  con- 
jecture. 

Reversed. 

Regina  v.  Trolloe,  1  Car.  &  Marsh  650;  Wallace  v.  State,  10  Tex.  App. 
255;  Rex  v.  Brain,  6  Car.  &  P.  349;  Reg.  v.  Sellis,  7  Car.  &  P.  850;  Reg. 
v.  Reeves,  9  Car.  &  P.  25;  Rex  v.  Enoch,  5  Car.  &  P.  539;  Evans  v.  Peo- 
ple, 49  N.  Y.  86;  Johnson  v.  State,  24  S.  W.  285;  Wharton,  Sec.  303; 
2  Bish.  Cr.  L.,  Sees.  630-635;  May,  218-219;  Hawley  &  McGregor,  p.  119. 


PEOPLE   V.   PALMER.  277 

(b)  Death. 
(I1)  Corpus  delicti. 

The  fact  that  a  crime  has  been  committed  must  be 
proved. 

PEOPLE  v.  PALMEK. 

Court  of  Appeals  of  New  York,  1888. 
109  N.  Y.  110;  16  N.  E.  529. 

APPEAL  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  third  judicial  department,  made  September  13, 
1887,  which  reversed  a  judgment  of  the  Court  of  Oyer  and  Ter- 
miner  of  the  county  of  Clinton,  entered  upon  a  verdict  convict- 
ing the  defendant  of  the  crime  of  murder  in  the  second  degree 
and  granting  a  new  trial. 

The  defendant  was  indicted  for  the  murder  of  one  Peter  Ber- 
nard. A  dead  body  was  found,  alleged  to  be  that  of  Bernard. 
There  was  no  direct  proof  of  that  fact,  and  it  was  sought  to  be 
established  by  circumstances,  among  others,  that  articles  were 
found  on  or  near  the  body  which  resembled  articles  shown  to 
have  been  the  property  of  and  in  the  possession  of  Bernard  be- 
fore he  disappeared.  One  witness  testified  that  he  made  for 
Bernard  a  boot  taken  from  the  foot  of  the  dead  body.  A  satchel 
was  found  near  the  body  in  which  was  an  almanac,  on  which  the 
name  of  "Bernard"  was  written.  A  witness  identified  it  as  Ber- 
nard's and  testified  that  he  had  seen  Bernard  write,  and  thought 
the  name  was  in  his  handwriting.  Keys  found  on  the  body  fitted 
the  lock  of  the  satchel.  Various  articles  of  clothing  found  on  the 
body  were  also  identified  as  belonging  to  Bernard.  The  body  was 
in  a  decomposed  and  unrecognizable  condition. 

FINCH,  J.  The  prisoner  was  convicted  of  murder  in  the  second 
degree,  and  that  conviction  reversed  by  the  General  Term,  be- 
cause there  was  no  direct  evidence  which  identified  the  body 


278  SPECIFIC   CRIMES. 

found  as  that  of  the  person  alleged  to  have  been  murdered.  From 
that  decision  the  People  appeal. 

The  question  is  a  very  grave  one;  not  merely  to  the  prisoner, 
whose  liberty  may  depend  upon  the  issue,  but  to  the  People  and 
the  administration  of  public  justice,  for,  if  the  law  be  as  the  Gen- 
eral Term  has  declared  it,  a  murderer  may  always  escape,  if  only 
he  shall  so  mutilate  the  body  of  his  victim  as  to  make  identifica- 
tion by  direct  evidence  impossible;  or  shall  so  effectually  conceal 
it  that  discovery  is  delayed  until  decomposition  has  taken  away 
the  possibility  of  personal  recognition;  and  it  will  follow  that  the 
tenderness  of  the  Penal  Code  has  opened  a  door  of  escape  to  that 
brutal  courage  which  can  mangle  and  burn  the  lifeless  body,  and 
has  put  a  premium  upon  and  offered  a  reward  for  that  species 
of  atrocity.  This  result  is  said  to  have  been  accomplished  by  sec- 
tion 181,  which  prohibits  a  conviction,  "unless  the  death  of  the 
person  alleged  to  have  been  killed,  and  the  fact  of  the  killing  by 
the  defendant  as  alleged,  are  each  established  as  independent 
facts,  the  former  by  direct  proof,  and  the  latter  beyond  a  reason- 
able doubt."  In  the  first  clause  of  this  provision,  the  endeavor  to 
state  and  describe  one  fact  has  involved  the  statement  of  another, 
changing  a  simple  into  a  compound  fact,  and  making  it  possible 
to  apply  the  requirement  of  direct  proof  to  the  two  facts  of  death 
and  of  identity,  rather  than  to  the  one  fact  of  the  death  alone. 
That  some  one  is  dead  is  directly  proved  whenever  a  dead  body 
is  found.  Its  identity,  as  that  of  the  person  alleged  to  have  been 
killed,  is  a  further  fact  to  be  next  established  in  the  process  of 
investigation.  If  it  be  the  meaning  of  the  Penal  Code  that  both 
of  these  facts,  identity  as  well  as  death,  are  to  be  proved  by  direct 
evidence,  it  establishes  a  new  rule  which  never  before  prevailed, 
and  of  which  no  previous  trace  can  anywhere  be  found.  It  has 
always  been  the  rule,  since  the  time  of  Lord  Hale,  that  the 
corpus  delicti  should  be  proved  by  direct,  or,  at  least,  by  certain 
and  unequivocal  evidence.  But  it  never  was  the  doctrine  of  the 
common  law  that,  when  the  corpus  delicti  had  been  duly  estab- 
lished, the  further  proof  of  the  identity  of  the  deceased  person 
should  be  of  the  same  direct  quality  and  character.  And  this  be- 
comes quite  evident  from  a  consideration  of  the  history  and 
philosophy  of  the  rule. 

By  the  corpus  delicti,  the  body  or  substance  of  the  offence,  has 


PEOPLE  V.   PALMER.  279 

always  been  meant  the  existence  of  a  criminal  fact.  Unless  such 
a  fact  exists  there  is  nothing  to  investigate.  Until  it  is  proved  in- 
quiry has  no  point  upon  which  it  can  concentrate.  Indeed,  there 
is  nothing  to  inquire  about.  But,  when  a  criminal  fact  is  dis- 
covered, its  existence,  for  the  purpose  of  a  judicial  investigation, 
must  be  established  fully,  completely,  by  the  most  clear  and  de- 
cisive evidence.  For  otherwise  the  after  reasoning  founded  upon 
it  and  drawing  its  force  from  it  will  be  dangerous,  fallacious, 
and  unreliable.  As  the  weakness  of  the  foundation  is  more  and 
more  intensified,  while  the  superstructure  ascends  and  the  weight 
grows,  so  the  circumstantial  evidence  built  upon  a  criminal  fact, 
not  certain  to  have  existed,  becomes  itself  weak  and  indecisive, 
and  more  and  more  so  as  the  suspicions  expand  and  extend.  If 
somebody  has  been  murdered  a  motive  for  a  murder  becomes  a 
significant  fact,  rendered  more  so  when  identification  shows  it  a 
motive  for  the  particular  murder.  But  if  the  death  is  doubtful 
the  probative  force  of  a  motive  dwindles  to  mere  suspicion.  In 
the  case  of  Kuloff  v.  People  (18  N.  Y.  179),  the  doctrine  was 
both  illustrated  and  applied.  The  death  of  the  prisoner's  infant 
child  was  not  proved,  but  in  its  place  was  put  the  equivocal  fact 
of  a  sudden  and  unexplained  disappearance.  The  evidence  might 
all  be  true  and  yet  the  child  be  living  and  not  dead;  and,  if  liv- 
ing, every  circumstance  relied  upon  became  at  once  fallacious 
and  deceptive.  Such  circumstances  gain  their  probative  force 
only  upon  condition  that  there  is  a  criminal  fact  which  they  serve 
to  explain. 

But  the  corpus  delicti,  the  existence  of  a  criminal  fact,  may  be 
completely  established,  and  the  need  of  direct  proof  satisfied,  be- 
fore the  question  of  identity  is  reached.  There  may  be  direct 
proof  of  a  murder,  though  no  one  knows  the  person  of  the  victim. 
A  dead  body  is  found  with  the  skull  mashed  in  upon  the  brain, 
under  circumstances  which  exclude  any  inference  of  accident  or 
suicide.  There  we  have  direct  evidence  of  the  death  and  cogent 
and  irresistible  proof  of  the  violence;  the  latter  the  cause  and 
the  former  the  effect;  both  obvious  and  certain,  and  establishing 
the  existence  of  a  criminal  fact  demanding  an  investigation. 
These  facts  proved,  the  corpus  delicti  is  established,  although 
nobody,  as  yet,  knows,  and  nobody  may  ever  know,  the  name  or 
personal  identity  of  the  victim.  Beyond  the  death  and  the  vio- 


280  SPECIFIC   CRIMES. 

lence  remain  the  two  inquiries  to  which  the  ascertained  criminal 
fact  gives  rise;  who  is  the  slain  and  who  the  slayer;  the  identity 
of  the  one  and  the  agency  of  the  other.  These  may  be  estab- 
lished by  circumstantial  evidence  which  convinces  the  conscience 
of  the  jury,  and  because  a  basis  has  been  furnished  upon  which 
inferences  may  stand  and  presumptions  have  strength. 

That  I  have  correctly  stated  what  is  meant  by  the  corpus 
delicti,  requiring  direct  proof,  and  that  it  never  did  include  the 
identity  of  the  victim,  but  left  that  open  to  indirect,  or  -circum- 
stantial evidence,  is  shown  by  an  unbroken  and  unvarying  concur- 
rence of  authority. 

Lord  Stowell  said,  in  Evans  v.  Evans  (1  Hag.  Con.  35,  105), 
"if  you  have  a  criminal  fact  ascertained,  you  may  then  take  pre- 
sumptive proof  to  show  who  did  it — to  fix  the  criminal — having 
then  an  actual  corpus  delicti."  In  Rex  v.  Clewes  (4  C.  &  P. 
221),  the  alleged  murder  was  in  1806,  and,  in  1829  bones  were 
found  buried  under  a  barn  which  the  prisoner  had  occupied. 
The  question  submitted  to  the  jury  was,  whether  these  bones 
were  the  remains  of  Hemmings,  the  person  alleged  to  have  been 
murdered.  It  was  sought  to  identify  the  bones  by  a  carpenter's 
rule  and  the  remnant  of  a  pair  of  shoes  found  near,  and  also  by 
something  remarkable  about  the  teeth.  No  question  of  the  com- 
petency of  any  of  the  evidence  was  at  all  suggested,  but  its 
sufficiency  was  criticised  and  finally  left  to  the  determination  of 
the  jury,  which  rendered  a  verdict  of  acquittal.  In  Wills  on  Cir- 
cumstantial Evidence  (p.  213),  it  is  said  that  direct  and  positive 
proof  of  the  identity  of  the  deceased  is  not  required,  and  the 
case  of  Rex  v.  Cook  is  cited,  in  which  it  appeared  that  a  human 
body  had  been  burned,  but  enough  remained  unconsumed  to 
show  that  it  was  the  body  of  a  male  adult,  and  its  further  identi- 
fication was  founded  upon  circumstances,  an  important  part  of 
which  was  the  finding  in  the  possession  of  the  prisoner  of  nume- 
rous articles  belonging  to  the  deceased.  In  Regina  v.  Hopkins 
(8  C.  &  P.  591),  the  identity  of  the  deceased  with  that  of  the 
child,  alleged  to  have  been  murdered,  failed,  not  only  because 
of  differences  in  the  appearance  of  the  body,  but  also  from  dif- 
ferences in  the  clothing,  and  the  whole  inquiry  turned  upon 
resemblances,  or  the  want  of  them.  In  Best  on  Presumptions 
(vol.  2,  p.  780),  it  is  said  that  "every  criminal  charge  involves 


PEOPLE  V.    PALMER.  281 

two  things;  first,  that  an  offence  has  been  committed;  and,  sec- 
ond, that  the  accused  is  the  author,  or  one  of  the  authors  of  it;" 
and,  the  learned  writer  adds:  "The  identification  of  the  body  of 
the  deceased  need  not  be  proved  by  witnesses,  who,  by  an  actual 
inspection  of  the  body,  recognize  it  as  the  body  of  the  person 
with  whose  murder  the  prisoner  is  charged;  but  it  may  be  by  the 
same  class  of  proof  as  is  used  to  identify  the  prisoner  on  trial, 
or  any  other  material  facts.  *  *  *  Indeed,  it  may  be  said 
that  any  proof  that  satisfies  the  jury  that  the  body  is  that  of  the 
deceased  is  sufficient;  as  fragments  of  the  clothing  identified  as 
similar  to  that  worn  by  the  deceased  when  last  seen  alive." 
Starkie  (p.  575)  defines  the  corpus  delicti  as  "the  fact  that  the 
crime  has  been  actually  perpetrated,"  and  Greenleaf  (vol.  3,  sec. 
131)  as  "the  fact  that  a  murder  has  been  committed,"  and  adds 
that  the  rule  requires  "unequivocal  and  certain  proof  that  some 
one  is  dead."  All  these  cases  and  authors  hold,  without  excep- 
tion, that  until  a  criminal  fact  has  been  established,  "antequam 
de  crimine  constiterit,"  there  can  be  no  basis  for  presumptive 
proof,  but  when,  in  a  case  of  murder,  that  basis  has  been  cer- 
tainly supplied,  the  identity  of  the  victim  and  the  agency  of  the 
prisoner  may  be  shown  by  circumstances. 

So  far  as  I  have  been  able  to  discover,  that  rule  has  always 
been  recognized  and  applied  in  this  country.  A  few  of  the  more 
remarkable  cases  may  be  studied  to  demonstrate  its  wide  pre- 
valence. In  People  v.  Wilson  (3  Park  Cr.  R.  199),  it  appeared 
that  a  dead  body,  with  marks  of  violence  upon  it,  had  been 
washed  ashore.  It  was  alleged  to  have  been  the  body  of  Captain 
Palmer  for  whose  murder  the  prisoner  was  being  tried.  No  direct 
evidence  of  that  identity  was  or  could  be  given.  But  the  criminal 
fact  of  a  death,  by  violence,  having  been  fully  established,  the 
identity  of  the  remains  was  proved  by  circumstances.  Personal 
recognition  had  become  impossible,  and  identity  was  established 
by  an  inference  from  resemblances.  The  height  of  the  deceased 
was  shown,  an  unusual  length  of  face,  and  a  widening  of  the 
end  of  the  little  finger,  to  which,  in  a  general  way,  the  body  cor- 
responded. But  a  more  important  fact  was  that  the  captain  had 
imprinted  his  name  upon  his  arm  and  leg,  and  in  the  same  por- 
tions of  the  body  found  the  skin  had  been  cut  away,  except  that 
on  the  leg  the  letter  P  remained  visible.  A  brother-in-law  of  de- 


282  SPECIFIC   CRIMES. 

ceased,  who  had  seen  the  body,  was  asked  the  direct  question, 
whose  body  it  was;  but  the  court  would  not  permit  an  answer; 
saying  that  the  question  was  not  the  ordinary  one  of  personal 
identity,  since  the  body  had  been  submerged  for  five  months, 
but  was  one  of  an  inference  from  resemblances,  which  the  jury 
and  not  the  witness  must  draw.  The  prisoner  was  convicted.  In 
Comm.  v.  Webster  (5  Gush.  295),  the  identification  stood  mainly 
upon  a  block  of  teeth  found  in  the  furnace  where  part  of  the 
body  was  consumed.  There  was  no  direct  recognition  of  the 
body  by  any  one,  but  the  circumstantial  evidence  was  very 
strong.  I  do  not  see  how  the  identification  of  the  false  teeth  can 
be  deemed  direct  evidence  of  the  identity  of  the  remains.  It  was 
a  fact  from  which  that  identity  could  be  inferred,  and  the  infer- 
ence be  very  strong,  but  the  conclusion  would  still  be  an  infer- 
ence. If  Dr.  Keep,  the  dentist,  after  examining  the  teeth,  had 
been  asked  the  direct  question  whether  the  mutilated  remains 
were  those  of  the  deceased,  he  could  only  have  answered  in  the 
affirmative,  as  a  judgment  founded  upon  a  process  of  reasoning. 
False  teeth  are  artificial  and  not  natural.  They  may  be  worn  at 
one  time  and  omitted  at  another.  They  may  be  lost  from  the 
mouth  and  pass  into  a  stranger's  possession.  If  their  identity  as 
found  among  the  remains  directly  identified  the  body,  why  did 
not  in  the  present  case  the  proved  identity  of  the  boot  found  on 
the  foot  of  the  body  discovered  directly  identify  that  body?  Is 
not  the  difference  rather  one  of  the  degree  than  of  the  kind  of 
proof?  But  in  both  cases  I  think  the  evidence  was  inferential, 
and  cannot  justly  be  regarded  as  direct.  In  Taylor  v.  The  State 
(35  Texas,  97),  there  was  no  direct  proof  of  the  identity  of  the 
deceased,  but  his  clothing,  hat  and  papers  were  identified,  and 
his  wagon  and  team  and  even  his  dog  were  found  in  the  prisoner's 
possession.  A  still  more  remarkable  case  was  that  of  The  State 
v.  Williams  (7  Jones,  446),  where  with  the  bones  were  found 
some  trifling  articles  of  feminine  attire,  seemingly  insufficient  to 
justify  an  inference  of  identity. 

In  all  the  investigation  to  which  the  briefs  of  counsel  have 
led  the  way,  and  which  I  have  independently  pursued,  I  have 
found  no  trace  of  authority  for  the  doctrine  said  to  be  established 
by  the  Penal  Code,  save  here  and  there  some  careless  expression 
which  seems  to  include  the  identity  of  the  deceased  in  the 


PEOPLE  V.   PALMER.  283 

corpus  delicti,  and  which  plainly  originated  in  a  tacit  assumption 
of  that  identity  for  the  purposes  of  the  idea  sought  to  be  con- 
veyed. 

We  come  now  to  the  inquiry  whether  the  rule  of  the  common 
law  has  in  fact  been  changed  by  the  Penal  Code,  and  we  are  to 
approach  that  inquiry  with  the  presumption  that  no  such  change 
was  intended  unless  the  statute  is  explicit  and  clear  in  that  direc- 
tion. (1  Kent's  Com.  [3d  ed.]  p.  463;  White  v.  Wager,  32  Barb. 
250;  affirmed  25  N.  Y.  328.)  I  am  persuaded  that  a  careful 
analysis  of  the  section  referred  to  will  show  that  no  such  change, 
so  radical  and  dangerous,  was  either  made  or  intended,  and  that 
the  sole  scope  and  purpose  of  the  section  was  to  declare  in  explicit 
terms  the  existing  rule  of  the  common  law. 

The  language  of  that  section  contemplates  two  independent 
facts,  not  three  nor  four.  It  speaks  of  them  as  "each,"  and  de- 
scribes them  as  "the  former"  and  "the  latter."  One  is  to  be  proved 
by  direct  evidence,  the  other  beyond  a  reasonable  doubt.  This 
language  is  appropriate  and  precise,  if  by  the  one  fact  is  meant 
the  fact  of  the  death  of  the  person  alleged  to  have  been  killed, 
however  that  identity  may  be  shown,  and  assuming  it  to  have 
been  established;  and  by  the  other  the  guilty  agency  of  the  pri- 
soner. But  the  language  becomes  quite  inappropriate  if  the 
meaning  is  that  two  facts,  the  death  of  the  deceased  and  his 
identity,  are  to  be  established  by  direct  evidence.  It  is  the  one 
fact  that  is  to  be  thus  proved.  When  the  person  supposed  or 
alleged  to  be  dead  is  identified,  the  fact  that  such  person  is 
actually  dead — not  merely  that  he  has  disappeared  or  cannot  be 
found — that  vital  fact  of  his  death  must  be  proved  by  direct  evi- 
dence. As  the  learned  district  attorney  very  aptly  states  it, 
"direct  proof  that  somebody  is  dead  becomes  direct  proof  that 
A.  B.  is  dead  when  the  body  is  identified  as  that  of  A.  B." 

But  the  meaning  and  construction  of  the  section  becomes 
plainer  when  we  observe  that  if  the  identity  of  the  deceased  is 
involved  in  the  first  fact,  treated  as  a  compound  fact,  and  requir- 
ing direct  proof,  it  is  also  embraced  in  the  second  fact  which  is 
equally  a  compound  fact,  and  which  may  be  proved  by  indirect 
evidence.  The  second  clause  reads:  "The  fact  of  the  killing  by 
the  defendant  as  alleged;"  not  merely  a  killing,  but  the  killing 
as  alleged;  the  precise  killing  with  which  he  stands  charged;  in 


284  SPECIFIC   CRIMES. 

the  present  case,  not  simply  the  killing  of  somebody,  but  the 
killing  alleged,  that  of  Peter  Bernard,  the  identical  person,  what- 
ever his  name,  whose  dead  body  has  been  found.  The  killing 
of  that  particular  person  is,  therefore,  again  a  compound  fact 
made  up  of  violence  causing  death,  and  its  infliction  upon  the 
person  of  the  alleged  victim  and  none  other  than  he.  Under  the 
second  clause,  by  its  explicit  terms,  it  may  be  proved,  by  circum- 
stantial evidence,  that  the  prisoner  killed  Peter  Bernard,  for  that 
is  the  killing  alleged,  and  no  other  is  admissible,  or  referred  to. 
It  would  seem  to  follow,  therefore,  upon  the  construction  as- 
serted by  the  defence,  that  the  same  identification,  as  a  limitation 
upon  the  death,  must  be  proved  by  direct  evidence,  but  as  a  limita- 
tion upon  the  killing  may  be  proved  by  indirect  evidence.  No 
such  confusion  or  contradiction  was  intended  or  effected.  The 
requirement  of  the  Code  goes  upon  the  assumption  that  the 
identity  of  the  deceased,  either  by  name  or  description,  has  been 
established  in  the  ordinary  way,  and  then  requires  that  the  death 
of  that  person,  thus  identified,  shall  be  directly  proved,  and  the 
killing  by  the  prisoner  of  the  same  person  shall  be  shown  beyond 
a  reasonable  doubt.  Those  two  facts  alone  are  the  subject  of  the 
legislation,  and  they  are  properly  referred  to  as  "each,"  and  cor- 
rectly described  as  the  "former"  and  the  "latter."  No  purpose  to 
change  the  settled  rule  of  the  common  law  is  disclosed,  but 
simply  an  intent  to  declare  it  as  it  had  long  existed.  The  trial 
judge,  therefore,  was  right,  and  the  General  Term  was  in  error. 

We  have  read  the  evidence  given  carefully.  That  the  body 
found  was  that  of  Peter  Bernard  was  established  beyond  reason- 
able doubt.  The  prisoner  was  a  witness  in  his  own  behalf.  He 
shows  that  he  and  Bernard  were  in  the  locality  where  the  body 
was  found  at  about  the  date  of  the  latter's  disappearance.  His 
own  declarations  show  that  he  had  no  doubt  of  the  identity  of 
the  body  found.  He  explains  his  possession  of  a  twenty  dollar 
bill  which  in  some  manner  he  got  from  Bernard,  but  the  explana- 
tion is  not  at  all  probable  or  satisfactory.  The  evidence  of  the 
persons  who  claim  to  have  seen  the  deceased  after  the  date  of  the 
murder  was  probably  honest,  but  quite  certainly  mistaken.  He 
was  a  total  stranger  to  them,  and  their  comparison  was  founded 
on  a  photograph.  In  the  case  of  Webster  there  were  five  persons 
who  honestly  believed  that  they  saw  Parkman  alive  after  he  had 


STATE   V.   BANTLEY.  285 

in  fact  been  killed.  Upon  the  whole  case  we  see  no  sufficient  rea- 
son to  distrust  the  conclusion  which  the  jury  reached. 

The  judgment  of  the  General  Term  should  be  reversed,  and 
that  of  the  Oyer  and  Terminer  of  Clinton  county  affirmed. 

All  concur,  except  Gray,  J.,  dissenting. 

Judgment  reversed. 

State  v.  Davidson,  30  Vt.  377;  Lee  v.  State,  76  Ga.  498;  Stocking  v. 
State,  7  Ind.  326;  Ruloff  v.  People,  18  N.  Y.  179;  State  v.  German,  54  Mo. 
526;  Dreesen  v.  State,  56  N.  W.  1024;  People  v.  O'Connell,  29  N.  Y.  S. 
195;  Com.  v.  Johnson,  29  Atl.  280;  State  v.  Smith,  37  Pac.  491;  State  v. 
Smith,  9  Wash.  341;  U.  S.  v.  Williams  &  Cox,  1  Clifford  5;  N.  Y.  Penal 
Code,  Sec.  181;  May,  Sec.  126;  Minn.  Stat.  1894,  Sec.  6435;  Wharton, 
Sec.  311. 


(21)  Cause  of. 

The  act  must  have  been  the  natural  cause  of  the  death, 
but  it  need  not  have  been  the  direct  cause,  for  if  it  is  in- 
direct and  contributing  merely  it  is  sufficient. 

STATE  v.  BANTLEY. 

Supreme  Court  of  Errors  of  Connecticut,  1877. 
44  Conn.  537. 

PARDEE,  J.  On  the  night  of  June  llth,  1876,  the  accused 
inflicted  a  severe  gun-shot  wound  upon  the  arm  of  one  March, 
between  the  elbow  and  shoulder.  March  died  eleven  days  there- 
after of  lock-jaw.  The  prosecution  claimed  that  death  resulted 
from  the  wound;  the  accused  claimed  that  it  resulted  from  the 
treatment  of  the  case  by  the  attending  physicians.  The  wound 
was  dressed  in  the  first  instance  by  one  surgeon,  afterwards  to 
the  time  of  death  by  another;  these  differed  radically  as  to  the 
manner  in  which  the  case  should  have  been  treated. 

The  counsel  for  the  accused  claimed,  and  asked  the  court  to 
charge  the  jury,  that  if  they  should  find  that  the  death  of  March 
was  the  result  or  consequence  of  willful  mismanagement  or  gross 


286  SPECIFIC   CRIMES. 

carelessness  on  the  part  of  the  attending  surgeons,  they  could  not 
find  the  accused  guilty  of  manslaughter,  as  charged  in  the  in- 
formation. The  court  charged  the  jury,  that  unless  they  should 
find  that  March  died  from  a  wound  inflicted  on  him  by  the 
accused,  ad  charged  in  the  information,  they  could  not  convict 
him  of  manslaughter;  but  that  if  they  should  find  that  the 
accused  willfully,  and  without  justifiable  cause,  inflicted  on 
March  a  dangerous  wound,  from  which  death  would  be  likely  to 
ensue,  and  if  they  should  find  also  that  his  death  did  in  fact 
ensue  from  and  was  caused  by  the  wound,  and  not  from  any 
other  cause,  carelessness  and  mismanagement  of  whatever  char- 
acter on  the  part  of  the  attending  surgeons  would  be  immaterial, 
and  the  treatment  of  the  case  by  them,  whatever  it  may  have 
been,  could  not  avail  the  accused  as  a  defence.  The  jury  having 
returned  a  verdict  of  guilty,  the  accused  moved  for  a  new  trial 
for  error  in  the  charge. 

As  to  the  law  applicable  to  this  case,  Roscoe  says:  "The  law 
on  this  point  is  laid  down  at  some  length  by  Lord  Hale.  If,  he 
says,  a  man  give  another  a  stroke,  which,  it  may  be,  is  not  in 
itself  so  mortal  but  that  with  good  care  he  might  be  cured,  yet 
if  he  dies  within  the  year  and  day,  it  is  a  homicide  or  murder  as 
the  case  is,  and  so  it  has  been  always  ruled.  But  if  the  wound 
be  not  mortal,  but  with  ill  application  by  the  party  or  those  about 
him  of  unwholesome  salves  or  medicines  the  party  dies,  if  it 
clearly  appears  that  the  medicine  and  not  the  wound  was  the 
cause  of  the  death,  it  seems  it  is  not  homicide;  but  then  it  must 
clearly  and  certainly  appear  to  be  so.  But  if  a  man  receive  a 
wound  which  is  not  in  itself  mortal,  but  for  want  of  helpful  ap- 
plications or  neglect  it  turn  to  a  gangrene  or  a  fever,  and  the 
gangrene  or  fever  be  the  immediate  cause  of  the  death,  yet  this 
is  murder  or  manslaughter  in  him  that  gave  the  stroke  or  wound ; 
for  that  wound,  though  it  was  not  the  immediate  cause  of  the 
death,  yet  if  it  were  the  mediate  cause,  and  the  fever  or  gangrene 
the  immediate  cause,  the  wound  was  the  cause  of  the  gangrene 
or  fever,  and  so  consequently  causa  causans."  Roscoe's  Criminal 
Evidence,  7th  ed.,  717;  1  Hale  P.  C.,  428.  In  Rex  v.  Rews, 
Kelynge,  26,  it  was  holden  that  neglect  or  disorder  in  the  person 
who  receives  the  wound  will  not  excuse  the  person  who  gave  it; 
that  if  one  gives  wounds  to  another  who  neglects  the  care  of  them 


STATE  V.   BANTLEY.  287 

and  is  disorderly,  and  does  not  keep  that  rule  which  a  wounded 
person  should  do,  if  he  die  it  is  murder  or  manslaughter  accord- 
ing to  the  circumstances  of  the  case,  because  if  the  wounds  had 
not  been  given  the  man  had  not  died.  In  Regina  v.  Holland,  2 
Mood.  &  Rob.,  351,  the  deceased  had  been  severely  cut  with  an 
iron  instrument  across  one  of  his  fingers,  and  had  refused  to  have 
it  amputated;  at  the  end  of  a  fortnight  lock-jaw  came  on  and  the 
finger  was  then  amputated,  but  too  late,  and  the  lock-jaw  ulti- 
mately caused  death.  The  surgeon  expressed  the  opinion  that 
early  amputation  would  probably  have  saved  his  life.  Maule, 
J.,  held  that  a  party  inflicting  a  wound  which  ultimately  becomes 
the  cause  of  death  is  guilty  of  murder,  though  life  might  have 
been  preserved  if  the  deceased  had  not  refused  to  submit  to  a 
surgical  operation.  In  Commonwealth  v.  Pike,  3  Cush.,  181,  it 
was  held  that  where  a  surgical  operation  is  performed  in  a  proper 
manner  and  under  circumstances  which  render  it  necessary  in 
the  opinion  of  competent  surgeons,  upon  one  who  has  received 
a  wound  apparently  mortal,  and  such  operation  is  ineffectual  to 
afford  relief  and  save  the  life  of  the  patient,  or  is  itself  the  im- 
mediate cause  of  the  death,  the  party  inflicting  the  wound  will 
nevertheless  be  responsible  for  the  consequences.  Greenleaf 
says  (Greenleaf 's  Ev.,  3d  vol.,  sec.  139,  5th  ed.),  "If  death  ensues 
from  a  wound  given  in  malice,  but  not  in  its  nature  mortal,  but 
which  being  neglected  or  mismanaged  the  party  died,  this  will 
not  excuse  the  prisoner  who  gave  it;  but  he  will  be  held  guilty  of 
the  murder  unless  he  can  make  it  clearly  and  certainly  appear 
that  the  maltreatment  of  the  wound  or  the  medicines  ad- 
ministered to  the  patient  or  his  own  misconduct,  and  not  the 
wound  itself,  was  the  sole  cause  of  his  death,  for  if  the  wound 
had  not  been  given  the  party  had  not  died."  In  Rex  v.  Johnson, 
1  Lewin  C.  C.,  164,  the  deceased  died  from  a  blow  received  in  a 
fight  with  the  prisoner;  a  surgeon  expressed  an  opinion  that  a 
blow  on  the  stomach,  in  the  state  in  which  the  deceased  was, 
arising  from  passion  and  intoxication,  was  calculated  to  occasion 
death,  but  not  so  if  the  party  had  been  sober.  Hallock,  B., 
directed  an  acquittal,  observing  that  where  the  death  was  oc- 
casioned partly  by  a  blow  and  partly  by  a  predisposing  circum- 
stance, it  was  impossible  to  apportion  the  operation  of  the  several 
causes  and  to  say  with  certainty  that  the  death  was  immediately 


288  SPECIFIC  CRIMES. 

occasioned  by  any  one  of  them  in  particular.  Of  this  case  Roscoe 
remarks  that  it  may  be  doubted  how  far  this  ruling  of  the  learned 
judge  was  correct.  Roscoe's  Grim.  Ev.,  7th  ed.,  718.  In  Rex  v. 
Martin,  5  Car.  &  P.,  130,  where  the  deceased,  at  the  time  when 
the  blow  was  given,  was  in  an  infirm  state  of  health,  Parke,  J., 
said  to  the  jury:  "It  is  said  that  the  deceased  was  in  a  bad  state  of 
health,  but  that  is  perfectly  immaterial,  as,  if  the  prisoner  was  so 
unfortunate  as  to  accelerate  her  death,  he  must  answer  for  it." 
In  Commonwealth  v.  Hackett,  2  Allen,  136,  it  was  held  that  one 
who  has  willfully  inflicted  upon  another  a  dangerous  wound, 
with  a  deadly  weapon,  from  which  death  ensued,  is  guilty  of 
murder  or  manslaughter  as  the  evidence  may  prove,  although 
through  want  of  due  care  or  skill,  the  improper  treatment  of  the 
wound  by  surgeons  may  have  contributed  to  the  death. 

Upon  these  authorities  we  may  state  the  rule  as  follows:  If 
one  person  inflicts  upon  another  a  dangerous  wound,  one  that  is 
calculated  to  endanger  and  destroy  life,  and  death  ensues  there- 
from within  a  year  and  a  day,  it  is  sufficient  proof  of  the  offence 
either  of  manslaughter  or  murder  as  the  case  may  be;  and  he  is 
none  the  less  responsible  for  the  result  although  it  may  appear 
that  the  deceased  might  have  recovered  if  he  had  taken  proper 
care  of  himself,  or  that  unskillful  or  improper  treatment  aggra- 
vated the  wound  and  contributed  to  his  death. 

There  is  no  such  defect  in  the  law  as  that  the  person  who  in- 
tentionally inflicts  a  wound  calculated  to  destroy  life,  and  from 
which  death  ensues,  can  throw  responsibility  for  the  act  upon 
either  the  carelessness  or  the  ignorance  of  his  victim;  or  shield 
himself  behind  the  doubt  which  disagreeing  doctors  may  raise  as 
to  the  treatment  proper  for  the  case. 

Indeed  counsel  for  the  defendant  do  not  really  deny  the  force 
of  the  rule.  Their  complaint  is  rather  in  the  nature  of  a  verbal 
criticism  of  the  charge.  The  judge  said  to  the  jury  that  if  the  death 
of  March  resulted  from  the  wound  and  from  no  other  cause, 
carelessness  and  mismanagement  of  whatever  character  on  the 
part  of  the  attending  surgeons  would  be  immaterial.  It  is  to  be 
presumed  in  favor  of  a  charge  that  it  refers  to  matters  concerning 
which  witnesses  have  testified  and  to  points  concerning  which 
counsel  have  presented  arguments;  and  it  is  not  to  be  presumed 
that  it  includes  within  its  scope  all  possibilities.  From  this  record 


STATE  V.   BANTLEY.  2891 

j 

we  cannot  perceive  that  any  witness  suggested  even  that  the  at- 
tending surgeons  caused  the  death  of  March  by  an  intentional 
misapplication  or  withholding  of  remedies,  or  that  counsel  in 
argument  intimated  any  such  thing.  The  motion  states  that  the 
two  doctors  differed  radically  regarding  the  treatment  proper  for 
the  case;  the  claim  of  each  as  to  the  other  was  that  he  had  erred 
through  ignorance,  not  by  criminal  intention;  and  when  the 
judge  used  the  expression  complained  of  in  this  case,  we  are  to 
presume  that  he  referred,  and  that  the  jury  understood  him  to 
refer,  to  that  kind  of  mismanagement  alone  of  which  witnesses. 
had  testified  and  concerning  which  counsel  had  argued  in  their 
hearing.  With  this  limitation  the  defendant  has  no  occasion  for 
complaint. 

A  new  trial  is  not  advised. 

In  this  opinion  the  other  judges  concurred. 

People  v.  Rockwell,  39  Mich.  503;  Com.  'v.  Campbell,  7  Allen  541; 
State  v.  Scates,  5  Jones  (N.  C.)  420;  People  v.  Ah  Fat,  48  Cal.  61;  Smith 
v.  State,  50  Ark.  545;  State  v.  Smith,  73  la.  32;  Hendrickson  v.  Com.,  85 
Ky.  281;  State  v.  Costello,  62  la.  404;  Com,  v,  Hackett,  2  Allen  136; 
State  v.  Landgraf,  95  Mo.  97;  State  v.  O'Brien,  81  la.  88;  Livingston  v: 
Com.,  14  Grat.  592;  People  v.  Carter,  56  N.  W.  79;  People  v.  Elder,  100 
Mich.  515;  Bish.  II.,  Sec.  639;  Clark,  p.  128;  Wharton,  Sec.  307  (a);  Haw- 
ley  &  McGregor,  p  120. 


(31)  Time  of  Death. 

The  death  must  occur  within  a  year  and  a  day  from  the 
time  when  the  injury  was  inflicted. 

.  State  v.  Orrell,  1  Dev.  (N.  C.)  139;  State  v.  May  field,  66  Mo.  125:  Peo- 
ple v.  Aro,  6  Gal.  208;  May,  Sec.  219;  Wharton,  Sec.  312;  Hawley  &  Mc- 
Gregor, p.  121.  • » 


19 


290  SPECIFIC   CRIMES. 


(2)  Kinds. 
(a)  Justifiable  Homicide. 

A  justifiable  homicide   occurs  where  life   is  necessarily 
taken  in  the  lawful  discharge  of  a  legal  duty. 


(I1)  In  the  Punishment  of  Crimes. 

One  who,  in  accordance  with  the  forms  of  law  and  under 
a  valid  judgment  of  death,  executes  a  criminal,  or  takes 
life,  a  felony  having  been  committed,  in  order  to  effectuate 
an  arrest,  commits  a  justifiable  homicide. 

UNITED  STATES  v.  RICE. 

Circuit  Court  of  the  United  States,  1875. 
1  Hughes,  560. 

(See  page  121  for  this  case.) 

People  v.  Kilvington,  37  Pac.  799;  Clements  v.  State,  50  Ala  117;  U.  8. 
v.  Clark,  31  Fed.  Rep.  710;  Wolf  v.  State,  19  Ohio  St.  248;  Kelly  t>.  State, 
68  Fed.  652;  State  v.  Moore,  39  Conn.  244;  State  v.  Turlington,  102  Mo. 
642;  State  v.  Bland,  97  N.  C.  438;  Jackson  v.  State,  76  Ga.  473;  Dilger  v. 
Com.,  88  Ky.  550;  Head  v.  Martin,  85  Ky.  480;  State  v.  Dierberger,  96 
Mo.  666;  Minn.  Stat.  1894,  Sec.  «460;  N.  Y.  Penal  Code,  Sec.  204;  May, 
Sec.  218;  Wharton,  Sec.  508;  Clark,  p.  134;  Hawley  &  McGregor,  p.  123. 

NOTE.— Some  States  hold  that  an  officer  can  never  take  life  in  order 
to  arrest  for  a  misdemeanor. 

Head  v.  Martin,  85  Ky.  480;  Dilger  v.  Com.,  88  Ky.  550;  Clark,  p.  135; 
Hawley  &  McGregor,  p.  129. 


PEOPLE   V.   COLE.  291 


(2l)  In  the  Prevention  of  Crime. 

One  is  justified  in  preventing  a  felony  even  to  the  extent 
of  taking  life  if  necessary. 

PEOPLE  v.  COLE. 

Court  of  Oyer  and  Terminer  of  New  York,  1857. 
4  Park  Cr.  Rep.  35. 

EMOTT,  P.  J.  After  some  remarks  upon  the  importance  of  the 
cause,  and  the  relative  duties  of  the  court  and  jury  in  such  cases, 
the  judge  proceeded  as  follows: 

This  indictment  is  for  the  killing  of  Aaron  Cole  by  the  pri- 
soner, Benjamin  Cole,  by  shooting  him  with  a  gun,  on  the  7th 
day  of  June  last,  and  it  is  charged  by  the  prosecution  to  have 
been  done  willfully,  and  with  premeditation.  The  taking  of  the 
life  of  Aaron  Cole  by  the  prisoner,  as  also  the  killing  of 
Charles  Salpaugh,  at  the  same  time,  by  the  discharge  of  the  other 
barrel  of  the  gun,  is  proved,  and  indeed  admitted,  and  the  only 
questions  for  you  are,  under  what  circumstances,  and  with  what 
design,  the  prisoner  destroyed  the  life  of  Aaron  Cole.  The  cir- 
cumstances attending  the  death  of  Salpaugh  are  only  important 
as  affecting  these  questions.  So  also  the  quarrels  between  these 
parties  of  fishermen,  the  interference  of  one  party  with  the  nets 
of  the  other,  and  any  invasion  or  threatened  invasion  of  such 
property,  can  have  no  other  bearing.  No  such  quarrels,  threats 
or  invasions  of  property  can  justify  or  excuse  the  taking  of  life, 
and  you  must  remove  all  these  facts  from  your  consideration, 
except  so  far  as  they  go  to  show  the  intention  of  the  prisoner,  or 
characterize  the  acts  of  the  deceased,  and  thus  to  justify  or 
mitigate  the  homicide,  which  they  do  but  remotely,  if  at  all. 

The  character  of  the  prisoner  has  been  proven  to  have  been 
good.  He  is  spoken  of  as  a  quiet  and  peaceable  man.  Character 
is  important  in  a  case  where  it  is  doubtful  upon  the  evidence 
whether  the  prisoner  committed  the  act,  and  where  the  jury 
have  a  right  to  weigh  probabilities.  As  this  case  stands,  although 


SPECIFIC   CRIMES. 

we  did  not  feel  justified  in  excluding  the  evidence,  its  bearing  is 
more  remote,  and  the  fact  of  the  prisoner's  previous  good  char- 
acter can  only  aid  you  in  deciding  with  what  intention  and  at 
what  suggestions  he  fired  the  fatal  shot,  if  it  can  aid  you  at  all. 

The  defence  assert  that  this  act  is  justified  by  the  facts  proved 
in  the  case,  and  the  first  question  for  you  will  be  whether  it 
is  so. 

So  it  is  said  that  the  prisoner  was  justified  in  killing  Aaron 
Cole  in  self-defence.  The  right  of  self-defence  is  a  right  which 
is  inherent  in  man;  it  is  the  instinct  of  our  nature  to  assert  it 
when  we  are  in  peril,  and  it  would  be  in  vain  for  human  laws  to 
attempt  to  oppose  its  exercise.  Our  law  recognizes  and  defines 
it,  To  justify  the  prisoner  in  killing  Aaron  Cole  in  self-defence, 
it  is  necessary  that  the  prisoner  himself  should  have  been  at- 
tacked— that  he  should  have  reasonable  ground  to  suppose  that 
the  object  of  the  attack  was  to  kill  him,  or  to  do  him  great  bodily 
harm;  that  he  should  have  been  unable  to  withdraw  himself  from, 
this  imminent  danger,  and  therefore  should  have  been  compelled 
to  kill  Aaron  Cole  to  protect  himself  from  the  attack. 

You  will  now  recur  to  the  facts,  some  of  which  are  undisputed, 
and  upon  some  of  which  there  is  a  conflict  of  evidence.  It  will 
not  probably  be  necessary  for  you  to  go  further  back  in  the  his- 
tory of  this  transaction  than  to  the  approach  of  the  boat  of  Cole; 
and  Salpaugh  to  Kipp.  The  alleged  threats  against  Kipp  are  of 
no  importance  in  this  part  of  the  case. 

It  would  seem  that  when  Salpaugh  and  Aaron  Cole  came  up, 
having  been  informed  of  Kipp's  threatening  and  brandishing  his 
gun,  they  rowed  up  to  his  boat.  One,  or  both — it  is  disputed 
which — struck  with  oars,  either  at  Kipp  or  at  his  gun,  or  first  at 
the  gun  and  then  at  him.  Kipp  and  other  witnesses  for  the  de- 
fence swear  that  he  was  knocked  down  with  the  oar;  he  says  he 
was  stunned.  There  were  undoubtedly  outcries  and  threats  of 
some  kind;  Salpaugh  and  Aaron  Cole  sprang  into  Kipp's  boat, 
and  attacked,  and  probably  beat  him  with  their  fists;  and  some  of 
the  witnesses  for  the  defence  say  they  dragged  him  to  the  side  of 
the  boat  as  if  to  plunge  him  in  the  river.  It  is  also  said  that  the 
prisoner  called  to  Cole  and  Salpaugh  to  desist.  Whether  they 
were  engaged  in  this  attack  upon  Kipp,  or  were  leaving  the  boat 
when  the  shots  were  fired,  is  disputed;  and  this  point  it  will  be 


PEOPLE  V.   COLE.  293 

important  for  you  to  determine  in  this  and  also  in  another  part 
of  the  case.  It  is  also  disputed,  and  it  is  also  important  for  you  to 
ascertain,  how  far  the  prisoner  was  from  these  parties,  that  you 
may  determine  whether  he  was  in  instant  danger  from  these 
men,  and  to  what  extent  he  was  surrounded  so  as  to  prevent  his 
escaping  if  he  were  in  danger.  The  witnesses  are  in  conflict  upon 
this  question,  and  you  must  decide  which  is  the  correct  account 
of  the  transaction.  You  have  evidence  of  the  character  and  ap- 
pearance of  the  wounds  inflicted  upon  Salpaugh  and  Cole,  and 
the  extent  to  which  the  shot  scattered ;  and  this  may  assist  you  in 
ascertaining  how  far  they  must  have  been  from  the  muzzle  of  the 
gun  when  it  was  discharged. 

But  the  question  for  you  is  whether  the  prisoner  was  attacked 
by  Aaron  Cole,  and,  unable  to  escape,  was  in  imminent  danger 
from  his  attack,  so  that  he  was  driven  to  take  his  life  to  save  his 
own.  Mere  threats  of  what  would  be  done  after  the  design  upon 
another  was  effected,  are  not  enough.  Mere  apprehension  of 
danger  is  not  enough.  There  must  be  an  attack  by  the  person 
killed  upon  the  prisoner,  and  imminent  instant  danger.  It  is  true 
that  a  man  will  not  be  responsible  for  a  mistake  which  he  makes 
in  self-defence,  in  supposing  a  deadly  design  which  does  not  exist. 
But  he  must  be  actually  assailed,  and  he  must  show  reasonable 
ground  for  supposing  that  his  only  recourse  is  to  kill  his  assail- 
ant. 

1.  It  is  for  you  to  say  whether  the  facts  of  this  case  sustain 
such  a  belief.  If  you  come  to  that  conclusion  you  will  acquit  the 
prisoner. 

2.  If  you  are  not  convinced  that  such  a  necessity,  real  or  rea- 
sonably apparent,  existed  for  the  prisoner  to  take  the  life  of 
Aaron  Cole,  then  you  must  inquire  if  the  act  can  otherwise  be 
justified. 

It  is  claimed  to  be  justified  as  necessary  and  lawful  for  the 
protection  of  Kipp.  This  depends  upon  a  different  clause  of  the 
statute,  and  upon  different  principles.  At  the  common  law,  if  A. 
was  attacked  by  B.,  and  was  in  urgent  and  immediate  peril  of  his 
life,  and  C.  interposed  to  preserve  the  peace,  or  even  to  aid  A., 
and  it  was  actually  necessary  to  kill  B.  to  terminate  the  affray 
and  save  the  life  of  A.,  a  third  party  would  be  excused  for  killing 
him.  This  principle  is  preserved  in  the  statute. 


294  SPECIFIC  CRIMES. 

Homicide  is  justifiable  when  committed  "necessarily  in  law- 
fully keeping  and  preserving  the  peace."  You  will  observe  that 
the  language  of  this  section  is  very  different  from  that  of  the 
former.  In  the  section  or  clause  justifying  self-defence,  all  that 
is  required  is  that  the  jury  should  see  that  the  man  had  reason- 
able ground  for  believing  himself  in  instant  peril.  To  a  certain 
extent  a  man  must  be  his  own  judge  in  such  a  case,  and  if  he 
acts  honestly  and  upon  reasonable  ground,  he  will  not  be  held 
accountable  for  a  mistake  made  under  such  excitement  and  in 
great  apparent  personal  danger  to  himself. 

But  where  a  man  interposes  when  another  is  attacked,  it  must 
be  to  keep  the  peace,  and  the  protection  of  another  must  be  inci- 
dental to  this. 

And  if  he  killed  another  under  such  circumstances,  it  must  be 
shown  that  it  was  actually  necessary  for  him  to  do  so,  not  that  he 
had  reasonable  ground  for  believing  it  necessary,  but  that  there 
was  really  no  other  way  to  prevent  the  commission  of  a  felony. 

The  aspect  in  which  this  principle  is  said  to  be  applicable  to 
the  present  issue,  is  that  the  killing  of  these  two  men  was  neces- 
sary to  prevent  them  from  taking  the  life  of  Kipp.  It  is  said  that 
this  is  a  dangerous  defence  to  be  allowed,  and  there  is  force  in 
the  remark.  The  principle  of  the  proposed  defence,  however,  is 
true  and  right;  it  has  always  been  a  maxim  of  the  common  law, 
and  we  cannot  believe  that  it  has  been  designedly  omitted  from 
our  statute  book.  If  one  of  you  were  to  be  passing  in  our  streets, 
and  see  an  assassin  with  the  knife  or  the  pistol  at  the  breast  of 
another,  it  cannot  be  that  the  law  would  hold  you  guilty  for  even 
the  homicide  of  the  assailant,  if  necessarily  committed  to  arrest 
his  act.  But  there  is  danger  in  the  application  of  the  principle  to 
cases,  and  juries  must  be  on  their  guard  and  be  sure  that  a  case 
comes  clearly  and  beyond  all  doubt  within  the  rule  before  they 
apply  it. 

It  cannot  be  said  that  to  keep  the  peace  in  a  mere  affray,  a 
fist  fight,  it  can  be  necessary  to  resort  to  firearms  or  to  take  life 
in  any  case.  It  would  not  be  justifiable  for  a  person  assailed  with 
the  mere  naked  fists  to  use  deadly  weapons  himself,  much  less  can 
a  third  person  excuse  such  an  act. 

You  must  therefore  be  satisfied  in  the  present  instance,  in  the 
first  place,  that  Salpaugh  and  Aaron  Cole  designed  and  were  at- 


PEOPLE   V.   COLE.  295 

tacking  Kipp  to  kill  him,  to  drown  him,  or  to  take  his  life  in 
some  other  way,  or  to  maim  him.  If  the  actual  purpose  of  these 
men  was,  in  your  opinion,  only  to  beat  Kipp  with  their  fists — to 
have  a  fight  or  an  affray — it  could  not  have  been  necessary,  and 
it  cannot  be  justifiable  forrthe  prisoner  to  use  firearms. 

It  is  contended  that  the  proof  shows  an  actual  intention  by 
these  men  to  take  Kipp's  life,  either  (1)  with  his  gun,  which 
they  were  proceeding  to  take  away  from  him,  or  (2)  by  drowning 
him.  The  testimony  relied  upon  to  show  this,  consists  of  the 
threats  sworn  to,  and  the  alleged  dragging  Kipp  to  the  side  of 
his  boat  to  throw  him  over.  On  the  other  hand,  it  is  said  that  the 
only  design  upon  the  gun  was  to  make  it  go  off  by  striking  it, 
and  thus  render  it  harmless  to  these  men  themselves;  and  the 
purpose  in  getting  into  Kipp's  boat  was  merely  to  have  a  fight. 

This  is  a  question  for  you.  If  you  think  that  nothing  more 
than  a  beating  with  fists  was  designed  and  perpetrated,  or  about 
to  be  inflicted  on  Kipp,  then  this  justification  fails.  If,  however, 
you  are  satisfied  that  the  design  and  attempt  was  to  put  him  over- 
board or  kill  him,  then  you  will  have  to  inquire  in  the  second 
place  whether  it  was  actually  necessary  in  point  of  fact  for  the 
prisoner  to  kill  these  men — to  kill  Aaron  Cole,  as  he  did,  to  pre- 
vent the  death  of  Kipp.  In  this  inquiry  it  will  become  important 
for  you  to  determine  the  relative  position  and  distance  apart  of 
these  parties  at  the  time  of  the  shot.  It  is  said  by  the  prosecution, 
that  when  these  shots  were  fired  these  men  had  left  Kipp,  and 
were  leaving  his  boat;  and  that  this  is  shown  by  the  place  and 
manner  in  which  the  shot  entered  their  bodies.  The  witnesses 
disagree  as  to  the  distance  apart,  the  position  of  other  boats,  and 
the  number  surrounding  Kipp  and  the  prisoner.  If  this  affair  had 
occurred  on  land,  where  actual  manual  interference  could  have 
been  resorted  to,  it  is  not  easy  to  see  how  any  necessity  for  the 
use  of  firearms  could  have  arisen.  The  fact  that  the  parties  were 
upon  the  water  in  boats  is  undoubtedly  to  be  considered. 

It  is  for  you  to  say  how  controlling  an  element  this  circum- 
stance shall  become.  You  must  be  satisfied  that  it  was  actually 
necessary,  to  prevent  the  commission  of  a  homicide  of  Kipp,  at 
the  time  the  shots  were  fired,  for  the  prisoner  to  kill  Aaron  Cole, 
in  order  to  sustain  this  defence.  If  you  think  so,  you  will  acquit 
the  prisoner.  But  if  this  act  was  not  necessary,  clearly  and 


296  SPECIFIC   CRIMES. 

strictly  necessary,  you  will  be  unable  to  acquit  the  prisoner.  He 
has  then  taken  human  life  without  necessity,  and  therefore  with- 
out justification,  and  he  is  morally  and  legally  guilty  of  a  crime, 
a  high  crime,  and  you  must  say  so,  and  say  what  the  crime  is. 
This  will  depend  upon  his  design  in  the  act. 

The  jury  found  a  verdict  of  "not  guilty." 

Staten  v.  State,  30  Miss.  619;  State  v.  Harris,  1  Jones  (N.  C.)  .190; 
State  v.  Kennedy,  20  la.  569;  Ruloff  v.  People,  45  N.  Y.  215;  State  v. 
Benham,  23  la.  154;  Noles  v.  State,  26  Ala.  31;  State  v.  Rollins,  113  N.  C. 
722;  Crawford  v.  State,  90  Ga.  701;  Mitchell  v.  State,  22  Ga.  211;  State 
v.  Moore,  31  Conn.  479;  State  v.  Turlington,  102  Mo.  642;  People  v. 
Payne,  8  Gal.  341;  In  re  Neagle,  14  Sawy.  232;  Minn.  Stat.  1894,  Sec. 
6461;  Clark,  p.  137;  Bish.  I.,  Sec.  849  (4);  Wharton,  Sec.  495;  Hawley  & 
McGregor,  p.  127. 

NOTE.— But  one  is  not  justified  in  taking  life  to  prevent  a  felony 
unless  its  commission  is  being  attempted  by  force  and  surprise,  as  in 
the  case  of  a  sudden  and  violent  assault  with  intent  to  kill  or  rape  or 
In  case  of  burglary,  robbery  or  arson. 

Storey  v.  State,  71  Ala.  330;  Crawford  v.  State,  90  Ga.  701;  Stoneham 
v.  Com.,  86  Va.  523;  People  v.  Cook,  39  Mich.  236;  State  v.  Moore,  31 
Conn.  479;  Clark,  p.  138;  Wharton,  Sec.  496;  Hawley  &  McGregor,  p. 
127. 

NOTE.— The  modern  doctrine  is  that  when  a  felonious  attack  is  made 
with  intent  to  take  life  or  do  great  bodily  harm,  one  need  not  retreat, 
and  may  resist  even  to  the  extent  of  taking  life. 

Beard  v.  State,  158  U.  S.  550;  Erwin  v.  State,  29  Ohio  St.  186;  State  v. 
Donnelly,  69  la.  705;  Kingen  v.  State,  45  Ind.  518;  Thomas  v.  State,  16 
So.  4;  State  v.  Zeigler,  21  S.  E.  763;  State  v.  Rheams,  34  Minn.  18; 
Bish.  I.,  Sec.  850  (4);  Clark,  p.  139;  Wharton,  Sec.  498;  Hawley  &  Mc- 
Gregor, p.  131. 


REX   V.   VAN   BUTCHELL.  29>7 


(b)  Excusable. 

Excusable  homicide  occurs  where  some  blame  is  attached 
to  the  killing,  but  it  is  not  sufficient  for  the  law  to  take 
cognizance  of  it. 

(I1)  Misadventure. 

The  homicide  is  excusable  when  one  doing  a  lawful  act 
unintentionally  kills  a  person. 

REX  v.  VAN  BUTCHELL. 

Courts  of  Kings  Bench  and  Common  Pleas,  1829. 

(Msi  Prius.) 
3  Car.  &  P.  629  (14  E.  C.  L.). 

THE  indictment  charged  the  death  to  be  by  the  thrusting  of  a 
round  piece  of  ivory  into  and  up  the  fundament  and  against  the 
rectum  of  the  deceased,  William  Archer,  by  the  hand  of  de- 
fendant, Van  Butchell,  thereby  causing  a  wound  from  which  he 
died.  The  defendant  performed  the  act  in  discharge  of  profes- 
sional services. 

HULLOCK,  B.  (in  summing  up). — This  is  an  indictment  for 
manslaughter,  and  I  am  really  afraid  to  let  the  case  go  on,  lest 
an  idea  should  be  entertained  that  a  man's  practice  may  be  ques- 
tioned whenever  an  operation  fails.  In  this  case  there  is  no  evi- 
dence of  the  mode  in  which  this  operation  was  performed;  and, 
even  assuming  for  the  moment  that  it  caused  the  death  of  the 
deceased,  I  am  not  aware  of  any  law  which  says  that  this  party 
can  be  found  guilty  of  manslaughter.  It  is  my  opinion,  that  it 
makes  no  difference  whether  the  party  be  a  regular  or  an  irregu- 
lar surgeon,  indeed,  in  remote  parts  of  the  country,  many  persons 
would  be  left  to  die  if  irregular  surgeons  were  not  allowed  to 
practice.  There  is  no  doubt  that  there  may  be  cases  where  both 
regular  and  irregular  surgeons  might  be  liable  to  an  indictment, 


298  SPECIFIC   CRIMES. 

as  there  might  be  cases  where,  from  the  manner  of  the  operation, 
even  malice  might  be  inferred.  All  that  the  law  books  have  said 
has  been  read  to  you,  but  they  do  not  state  any  decisions,  and 
their  silence  in  that  respect  goes  to  show  what  the  uniform  opin- 
ion of  lawyers  has  been  upon  this  subject.  As  to  what  is  said 
by  Lord  Coke,  he  merely  details  an  authority,  a  very  old  one, 
without  expressing  either  approbation  or  disapprobation;  how- 
ever, we  find  that  Lord  Hale  has  laid  down  what  is  the  law  on 
this  subject.  That  is  copied  by  Mr.  Justice  Blackstone,  and  no 
book  in  the  law  goes  any  further.  It  may  be  that  a  person  not 
legally  qualified  to  practice  as  a  surgeon  may  be  liable  to  penal- 
ties; but  surely  he  cannot  be  liable  to  an  indictment  for  felony. 
It  is  quite  clear,  you  may  recover  damages  against  a  medical  man 
for  a  want  of  skill;  but,  as  my  Lord  Hale  says,  "God  forbid  that 
any  mischance  of  this  kind  should  make  a  person  guilty  of  mur- 
der or  manslaughter."  Such  is  the  opinion  of  one  of  the  greatest 
judges  that  ever  adorned  the  bench  of  this  country;  and  his 
proposition  amounts  to  this,  that  if  a  person,  lona  fide  and 
honestly  exercising  his  best  skill  to  cure  a  patient,  performs  an 
operation  which  causes  the  patient's  death,  he  is  not  guilty  of 
manslaughter.  In  the  present  case,  no  evidence  has  been  given 
respecting  the  operation  itself.  It  might  have  been  performed 
with  the  most  proper  instrument  and  in  the  most  proper  manner, 
and  yet  might  have  failed.  Mr.  Lloyd  has  himself  told  us  that  he 
performed  an  operation,  the  propriety  of  which  seems  to  have 
been  a  sort  of  vexata  quoestio  among  the  medical  profession;  but 
still  it  would  be  most  dangerous  for  it  to  get  abroad,  that,  if  an 
operation  performed  either  by  a  licensed  or  an  unlicensed  surgeon 
should  fail,  that  surgeon  would  be  liable  to  be  prosecuted  for 
manslaughter.  I  think  that,  in  point  of  law,  this  prosecution  can- 
not be  sustained;  and  I  feel  bound  to  say,  that  no  imputation 
whatever  ought  to  be  cast  upon  the  gentleman  who  is  now  at  the 
bar,  in  consequence  of  anything  that  has  occurred. 
Verdict,  not  guilty. 

State  v.  Morgan,  18  S.  E.  937;  Butler  v.  State,  19  S.  E.  51;  Rex  v.  Wil- 
liamson, 3  Car.  &  P.  635;  Levett's  Case,  1  Hale  P.  C.  42;  U.  S.  v. 
Meagher,  37  Fed.  875;  Rex  v.  Macleod,  12  Cox  C.  C.  534;  N.  Y.  Penal 
Code,  Sec.  203;  Minn.  Stat  1894,  Sec.  6459;  Clark,  p.  140;  Wharton,  Sec. 
306;  Hawley  &  McGregor,  p.  131. 


STATE  V.   PEO.  299 

(21)  Defence. 
(a1)  Of  Person. 

Excusable  homicide  also  occurs  where  one  upon  sudden 
affray,  from  necessity  to  save  his  own  life  or  the  lives  of 
those  dependent  upon  him  for  protection,  takes  the  life  of 
another. 

STATE  v.  PEO. 

Court  of  Oyer  and  Terminer  of  Delaware,  1889. 
9  Houston,  488;  33  Atl.  257. 

(See  page  100  for  this  case.) 

State  v.  Thompson,  71  la.  503;  White  v.  Territory,  3  Wash.  Ter.  397; 
Jones  v.  State,  26  Tex.  App.  1;  State  v.  Mclntosh,  18  S.  E.  1033;  Strick- 
lin  v.  State,  13  So.  898;  William  v.  State,  15  So.  662;  People  v.  Hynman, 
33  Pac.  782;  People  v.  Lynch,  35  Pac.  816;  State  v.  Symmes,  19  S.  B.  16; 
State  v.  Reed,  37  Pac.  174;  Wilson  v.  State,  30  Fla.  234;  Lovett  v.  State, 
30  Fla.  142;  N.  Y.  Penal  Code,  Sec.  205;  Floyd  v.  State,  36  Ga.  91;  Haw- 
ley  &  McGregor,  p.  131;  Minn.  Stat  1894,  Sec.  6461;  Clark,  pp.  139-149. 

NOTE.— The  right  of  defence  also  extends  to  those  who  stand  in  a 
family  relation. 

Patten  v.  People,  18  Mich.  314;  Sams  v.  State,  20  S.  W.  737;  Fretch  v. 
State,  16  S.  E.  102;  White  v.  White,  23  Tex.  App.  154;  Johnson  v.  State, 
26  Tex.  App.  631;  Hooks  v.  State,  13  So.  767;  Johnson  v.  State,  18  S.  E. 
298;  Hathaway  v.  State,  13  So  Rep.  592;  Potter  0.  People,  18  Mich.  314; 
Chittenden  v.  Com.,  9  S.  W.  386;  Estep  v.  Com.,  86  Ky.  39;  Karr  v.  State, 
17  So.  328;  Mallicoat  v.  Com.,  28  S.  W.  151;  Territory  v.  Galtiff,  37  Pac. 
809;  Phepps  v.  State,  31  S.  W.  657;  State  v.  Wilson,  39  Pac.  106;  Clark, 
p.  147;  Bishop  I.,  Sec.  877;  Wharton,  Sec.  494;  Hawley  &  McGregor,  133. 


300  SPECIFIC   CRIMES. 


(b1)  Of  Habitation. 

One  commits  an  excusable  homicide  who  takes  life  to 
prevent  another  from  entering  his  house  with  force,  intend- 
ing to  commit  a  felony  therein. 

WKIGHT  v.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky,  1887. 
85  Ky.  124;  2  S.  W.  909. 

(See  page  113  for  this  case.) 

Carroll  v.  State,  23  Ala.  28;  State  v.  Patterson,  45  Vt.  308;  People  v. 
Lilly,  38  Mich.  270;  People  v.  Coughlin,  67  Mich.  466;  People  v.  Peacock, 
40  Ohio  St.  333;  State  v.  Mclntosh,  40  S.  C.  349;  Clark,  p.  142;  Whartonr 
Sec.  503;  Hawley  &  McGregor,  p.  132. 


(c)  Felonious  Homicides. 

All  homicides  not  justifiable  or  excusable  are  felonious- 
(I1)  Murder. 

Murder  is  the  unlawful  killing  of  a  human  being  with 
malice  aforethought,  which  is  an  essential  and  character- 
istic element  of  murder,  and  means  that  "  The  fact  has 
been  attended  with  such  circumstances  as  are  the  ordinary 
symptoms  of  a  wicked,  depraved  and  malignant  spirit." 

COMMONWEALTH  v.  DRUM. 

Supreme  Court  of  Pennsylvania,  1868. 
58  Pa.  St  9. 

INDICTMENT  of  William  Drum  for  the  murder  of  David 
Mohigan. 


COMMONWEALTH  V.   DRUM.  301 

JUSTICE  AGNEW  charged  the  jury  as  follows: 

Gentlemen :  The  solemnity  of  the  form  in  which  the  prisoner 
has  been  arraigned,  and  through  which  you  have  been  set  apart 
to  become  his  triers,  is  well  calculated  to  impress  your  minds 
with  the  high  responsibility  of  the  duty  you  have  taken  upon 
you.  It  should  remind  you  that  you  are  not  to  be  blind  to  the 
interests  of  society  in  the  pity  you  may  feel  for  his  youth;  nor  to 
forget  the  justice  due  to  him  in  the  horror  you  may  feel  for  the 
crime.  Following  the  pathway  of  the  evidence,  you  should  turn 
neither  to  the  right  nor  the  left,  except  as  its  light  may  illumine, 
guide  and  direct  you.  Have  you  any  impressions  unfavorable  to 
capital  punishment?  You  must  discard  them,  knowing  and  feel- 
ing the  conviction  that  not  you,  but  the  law  inflicts  it.  You  do 
not  pronounce  the  sentence  which  condemns  to  death;  that  be- 
longs to  the  court;  but  you  simply  say  whether  he  has  committed 
the  deed  which  the  indictment  charges  against  him;  you  only 
find  a  true  verdict. 

You  must  not  be  affrighted  from  duty  by  the  consequences  of 
your  finding.  The  weak  and  timid  mind,  alarmed  at  the  picture 
which  eloquence  invokes,  shrinks  and  often  fears  to  follow 
whither  the  evidence  leads.  But  the  consequences  are  not  yours 
— they  follow  the  crime  and  not  the  finding.  You  should  then 
dismiss  the  fear  of  consequences  from  your  minds,  except  so  far 
as  their  dread  import  should  make  you  cautious,  deliberate  and 
just  in  weighing  the  evidence,  and  clear  and  satisfied  in  the 
judgment  you  form  upon  it.  If,  through  fear,  pity,  indignation 
or  passion,  you  suffer  your  minds  to  be  drawn  away  from  a  true 
and  just  verdict,  you  do  err.  Remember  this,  as  a  kind  and  faith- 
ful warning  of  the  minister  of  justice,  to  preserve  you  wholly 
blameless  in  the  high  office  you  are  called  to  perform. 

The  law  of  our  State  has  made  wilful,  deliberate  and  premedi- 
tated murder  a  capital  crime.  Sworn,  as  we  are,  to  obey  that 
law,  we  must  know  no  other  guide,  remembering  that  the  powers 
that  be  are  ordained  of  God,  and  that  we  needs  must  be  subject 
to  them,  not  only  for  the  wrath  they  may  invoke,  but  for  our  own 
conscience'  sake.  Then  hold  the  balance  firmly,  that  justice  may 
be  done  both  to  the  Commonwealth  and  to  the  prisoner;  such 
words  as  rich  and  poor,  high  and  low,  should  have  no  place  in 
your  thoughts.  You  would  not  willingly  err,  but  you  must  en- 


302  SPECIFIC   CHIMES. 

deavor  not  to  err.  Search  your  consciences  for  the  source  of  every 
judgment.  Let  your  convictions,  carefully  and  deliberately 
formed,  be  such  that  you  may  follow  them  to  their  fountain  in 
the  hidden  depths  of  the  heart  where  the  Unseen  Eye  alone  can 
penetrate,  and  there,  in  that  dread  presence,  challenge  their  true 
source. 

A  life  has  been  taken.  The  unfortunate  David  Mohigan  has 
fallen  into  an  untimely  grave;  struck  down  by  the  hand  of  vio- 
lence; and  it  is  for  you  to  determine  whose  was  that  hand,  and 
what  its  guilt.  The  prisoner  is  in  the  morning  of  life;  as  yet  so 
fresh  and  fair.  As  you  sat  and  gazed  into  his  youthful  face,  you 
have  thought,  no  doubt,  most  anxiously  thought,  is  his  that 
hand?  Can  he,  indeed,  be  a  murderer?  This,  gentlemen,  is  the 
solemn  question  you  must  determine  upon  the  law  and  the  evi- 
dence. 

At  the  common  law  murder  is  described  to  be,  when  a  person 
of  sound  memory  and  discretion  unlawfully  kills  any  reasonable 
creature  in  being  and  under  the  peace  of  the  Commonwealth, 
with  malice  aforethought,  expressed  or  implied.  The  distinguish- 
ing criterion  of  murder  is  malice  aforethought.  But  it  is  not  malice 
in  its  ordinary  understanding  alone,  a  particular  ill-will,  a  spite 
or  a  grudge.  Malice  is  a  legal  term,  implying  much  more.  It 
comprehends  not  only  a  particular  ill-will,  but  every  case  where 
there  is  wickedness  of  disposition,  hardness  of  heart,  cruelty, 
recklessness  of  consequences,  and  a  mind  regardless  of  social 
duty,  although  a  particular  person  may  not  be  intended  to  be  in- 
jured. Murder,  therefore,  at  common  law  embraces  cases  where 
no  intent  to  kill  existed,  but  where  the  state  or  frame  of  mind 
termed  malice,  in  its  legal  sense,  prevailed. 

In  Pennsylvania,  the  legislature,  considering  that  there  is  a 
manifest  difference  in  the  degree  of  guilt,  where  a  deliberate  in- 
tention to  kill  exists,  and  where  none  appears,  distinguished  mur- 
der into  two  grades — murder  of  the  first  and  murder  of  the 
second  degree;  and  provided  that  the  jury  before  whom  any  per- 
son indicted  for  murder  should  be  tried,  shall,  if  they  find  him 
guilty  thereof,  ascertain  in  their  verdict  whether  it  be  murder  of 
the  first  or  murder  of  the  second  degree.  By  the  act  of  31st 
March,  1860,  "all  murder  which  shall  be  perpetrated  by  means  of 
poison,  or  by  lying  in  wait,  or  by  any  other  kind  of  wilful,  delib- 


COMMONWEALTH   V.   DRUM.  303 

erate  and  premeditated  killing,  or  which  shall  be  committed  in 
the  perpetration  of,  or  attempt  to  perpetrate  any  arson,  rape, 
robbery  or  burglary,  shall  be  deemed  murder  of  the  first  degree; 
and  all  other  kinds  of  murder  shall  be  deemed  murder  of  the 
second  degree." 

In  this  case  we  have  to  deal  only  with  that  kind  of  murder  in 
the  first  degree  described  as  "wilful,  deliberate,  and  premedi- 
tated." Many  cases  have  been  decided  under  this  clause,  in  all 
of  which  it  has  been  held  that  the  intention  to  kill  is  the  essence 
of  the  offence.  Therefore,  if  an  intention  to  kill  exists,  it  is 
wilful;  if  this  intention  be  accompanied  by  such  circumstances  as 
evidence  a  mind  fully  conscious  of  its  own  purpose  and  design,  it 
is  deliberate ;  and  if  sufficient  time  be  afforded  to  enable  the  mind 
fully  to  frame  the  design  to  kill,  and  to  select  the  instrument,  or 
to  frame  the  plan  to  carry  this  design  into  execution,  it  is  pre- 
meditated. The  law  fixes  upon  no  length  of  time  as  necessary 
to  form  the  intention  to  kill,  but  leaves  the  existence  of  a  fully 
formed  intent  as  a  fact  to  be  determined  by  the  jury,  from  all 
the  facts  and  circumstances  in  the  evidence. 

A  learned  judge  (Judge  Rush,  in  Commonwealth  v.  Richard 
Smith)  has  said :  "It  is  equally  true  both  in  fact  and  from  expe- 
rience, that  no  time  is  too  short  for  a  wicked  man  to  frame  in  his 
mind  his  scheme  of  murder,  and  to  contrive  the  means  of  accom- 
plishing it."  But  this  expression  must  be  qualified,  lest  it  mis- 
lead. It  is  true  that  such  is  the  swiftness  of  human  thought,  that 
no  time  is  so  short  in  which  a  wicked  man  may  not  form  a  design 
to  kill,  and  frame  the  means  of  executing  his  purpose;  yet  this 
suddenness  is  opposed  to  premeditation,  and  a  jury  must  be  well 
convinced  upon  the  evidence  that  there  was  time  to  deliberate 
and  premeditate.  The  law  regards,  and  the  jury  must  find,  the 
actual  intent;  that  is  to  say,  the  fully  formed  purpose  to  kill,  with 
so  much  time  for  deliberation  and  premeditation,  as  to  convince 
them  that  this  purpose  is  not  the  immediate  offspring  of  rashness 
and  impetuous  temper,  and  that  the  mind  has  become  fully  con- 
scious of  its  own  design.  If  there  be  time  to  frame  in  the  mind, 
fully  and  consciously,  the  intention  to  kill,  and  to  select  the 
weapon  or  means  of  death,  and  to  think  and  know  beforehand, 
though  the  time  be  short,  the  use  to  be  made  of  it,  there  is  time 
to  deliberate  and  to  premeditate. 


304  SPECIFIC   CRIMES. 

The  proof  of  the  intention  to  kill,  and  of  the  disposition  of 
mind  constituting  murder  in  the  first  degree,  under  the  act  of 
Assembly,  lies  on  the  Commonwealth.  But  this  proof  need  not 
be  express  or  positive.  It  may  be  inferred  from  the  circum- 
stances. If,  from  all  the  facts  attending  the  killing,  the  jury  can 
fully,  reasonably,  and  satisfactorily  infer  the  existence  of  the 
intention  to  kill,  and  the  malice  of  heart  with  which  it  was  done, 
they  will  be  warranted  in  so  doing.  He  who  uses  upon  the 
body  of  another,  at  some  vital  part,  with  a  manifest  intention  to 
use  it  upon  him,  a  deadly  weapon,  as  an  axe,  a  gun,  a  knife  or  a 
pistol,  must,  in  the  absence  of  qualifying  facts,  be  presumed  to 
know  that  his  blow  is  likely  to  kill;  and,  knowing  this,  must  be 
presumed  to  intend  the  death  which  is  the  probable  and  ordinary 
consequence  of  such  an  act.  He  who  so  uses  a  deadly  weapon 
without  a  sufficient  cause  of  provocation,  must  be  presumed  to  do 
it  wickedly,  or  from  a  bad  heart.  Therefore,  he  who  takes  the 
life  of  another  with  a  deadly  weapon,  and  with  a  manifest  design 
thus  to  use  it  upon  him,  with  sufficient  time  to  deliberate,  and 
fully  to  form  the  conscious  purpose  of  killing,  and  without  any 
sufficient  reason  or  cause  of  extenuation,  is  guilty  of  murder  in 
the  first  degree. 

All  murder  not  of  the  first  degree,  is  necessarily  of  the  second 
degree,  and  includes  all  unlawful  killing  under  circumstances  of 
depravity  of  heart,  and  a  disposition  of  mind  regardless  of  social 
duty;  but  where  no  intention  to  kill  exists  or  can  be  reasonably 
and  fully  inferred.  Therefore,  in  all  cases  of  murder,  if  no  in- 
tention to  kill  can  be  inferred  or  collected  from  the  circum- 
stances, the  verdict  must  be  murder  in  the  second  degree. 

Manslaughter  is  defined  to  be  the  unlawful  killing  of  another 
without  malice  expressed  or  implied;  which  may  be  voluntarily 
in  a  sudden  heat,  or  involuntarily,  but  in  the  commission  of  an 
unlawful  act.  Voluntary  manslaughter  often  so  nearly  ap- 
proaches murder,  it  is  necessary  to  distinguish  it  clearly.  The 
difference  is  this :  manslaughter  is  never  attended  by  legal  malice 
or  depravity  of  heart — that  condition  or  frame  of  mind  before 
spoken  of,  exhibiting  wickedness  of  disposition,  recklessness  of 
consequences  or  cruelty.  Being  sometimes  a  wilful  act  (as  the 
term  voluntary  denotes)  it  is  necessary  that  the  circumstances 
should  take  away  every  evidence  of  cool  depravity  of  heart  or 


COMMONWEALTH   V.    DRUM.  305 

wanton  cruelty.  Therefore,  to  reduce  an  intentional  blow,  stroke 
or  wounding,  resulting  in  death,  to  voluntary  manslaughter, 
there  must  be  sufficient  cause  of  provocation,  and  a  state  of  rage 
or  passion,  without  time  to  cool,  placing  the  prisoner  beyond  the 
control  of  his  reason,  and  suddenly  impelling  him  to  the  deed.  If 
any  of  these  be  wanting — if  there  be  provocation  without 
passion,  or  passion  without  a  sufficient  cause  of  provocation,  or 
there  be  time  to  cool,  and  reason  has  resumed  its  sway,  the  kill- 
ing will  be  murder. 

Insulting  or  scandalous  words  are  not  sufficient  cause  of  pro- 
vocation; nor  are  actual  indignities  to  the  person  of  a  light  and 
trivial  kind.  Whenever  the  act  evidences  a  deadly  revenge,  and 
not  the  mere  heat  of  blood ;  whenever  it  is  the  result  of  a  devilish 
disposition,  and  not  merely  the  phrensy  of  rage,  it  is  not  man- 
slaughter, but  murder. 

Having  stated  the  law  of  the  crime,  we  now  note  the  law  of 
the  evidence.  And,  first,  it  may  be  stated  as  a  general  rule,  that 
all  homicide  is  presumed  to  be  malicious,  that  is,  murder  of  some 
degree,  until  the  contrary  appears  in  evidence.  Therefore,  the 
burthen  of  reducing  the  crime  from  murder  to  manslaughter, 
where  it  is  proved  that  the  prisoner  committed  the  deed,  lies  on 
him.  He  must  show  all  the  circumstances  of  alleviation  or  excuse 
upon  which  he  relies  to  reduce  his  offence  from  murder  to  a 
milder  kind  of  homicide,  unless,  indeed,  where  the  facts  already 
in  evidence  show  it.  But  though  the  homicide,  without  the  cir- 
cumstances of  alleviation  or  excuse,  is  presumed  to  be  murder, 
it  is  not  presumed  to  be  murder  of  the  first  degree.  The  presump- 
tion against  him  rises  no  higher  than  murder  in  the  second 
degree,  until  it  is  shown  by  the  Commonwealth  to  be  murder  in 
the  first  degree.  It  therefore  lies  on  the  Commonwealth  to  satisfy 
the  jury  of  those  facts  and  circumstances  which  indicate  the 
deliberate  intention  to  kill,  and  the  cool  depravity  of  heart  and 
conscious  purpose,  which  constitute,  as  before  stated,  the  crime  of 
murder  in  the  first  degree.  When  death  ensues  from  the  use  of 
a  deadly  weapon,  in  a  quarrel  or  affray,  the  jury  must  scan  closely 
the  conduct  of  both  parties,  their  former  relations  and  behavior, 
and  the  current  of  events;  the  character  of  the  weapon,  the  man- 
ner of  its  use,  and  circumstances  attending  it;  and  by  a  careful 
survey  of  the  evidence,  must  endeavor  to  arrive  at  the  true 
20 


306  SPECIFIC   CRIMES. 

motive  and  cause  which  prompted  the  fatal  blow.  Has  there  been 
a  former  difficulty?  What  feeling  did  it  produce,  and  what  de- 
sign did  it  beget?  Was  the  weapon  prepared,  and  was  the  blow 
given  coolly  and  without  rage,  or  was  it  a  sudden  and  impetuous 
impulse,  causing  the  act  to  be  committed  rashly  and  without 
reflection?  Were  the  parties  engaged  in  mutual  combat  when  the 
blow  was  given,  or  was  it  given  when  the  prisoner  was  not  fight- 
ing? Did  he  use  the  weapon  when  he  might  have  avoided  it,  or 
was  the  attack  commenced  by  the  deceased,  and  continued  by 
him  until  the  fatal  wound  was  given?  Was  the  prisoner  hemmed 
in  and  without  means  of  escape?  Was  he  in  danger  of  life  or 
great  bodily  harm,  and  did  he  give  the  blow  with  the  knife  under 
the  influence  of  excitement  and  fear  of  loss  of  life,  or  the  inflic- 
tion of  great  injury  to  his  person? 

Again,  the  nature  of  the  weapon,  and  the  place  and  character 
of  the  wound,  are  important  to  be  considered.  Was  it  a  deadly 
instrument,  a  knife,  a  dagger,  or  dirk  knife?  The  deadliness  of 
the  weapon  tends  to  indicate  the  intention  with  which  it  is  used. 
The  place  where  the  thrust  is  made  also  throws  light  on  the  inten- 
tion. If  used  upon  the  arms  or  legs  it  may  indicate  only  an  inten- 
tion to  cut  and  wound;  if  used  upon  a  vital  part  of  the  body  it 
may  indicate  an  intention  to  kill.  All  these  are  most  pertinent 
inquiries  to  be  made  in  this  case,  in  order  to  apply  the  results 
drawn  from  the  evidence  to  the  case  as  presented  by  each  side. 
This  will  be  seen  at  once  by  noting  the  different  aspects  in  which 
the  case  is  presented  by  the  Commonwealth  and  by  the  defence. 
On  part  of  the  Commonwealth  it  is  alleged  that  in  consequence 
of  previous  difficulties  between  the  prisoner  and  the  deceased,  the 
prisoner  armed  himself  with  a  dirk  knife  or  dagger,  intending 
to  use  it  upon  deceased,  if  they  met  and  had  another  difficulty; 
that  when  they  met  on  Thursday  night,  after  the  deceased  was 
struck  at  over  the  railing  by  Robert  Miskelly,  he  turned  down- 
ward and  toward  the  curb,  and  was  striking  at  some  one  there, 
and  not  at  the  prisoner,  and  while  thus  engaged,  the  prisoner, 
stepping  or  leaning  forward  toward  him,  extended  his  arm  and 
gave  him  the  thrust  in  the  left  side,  which  was  the  next  to  him. 
In  this  view  of  the  case,  the  preparation  of  the  knife,  the  entire 
absence  of  provocation  at  the  time  of  giving  the  wound,  the 
deadly  nature  of  the  weapon,  and  the  vital  part  at  which  the 


COMMONWEALTH   V.   DRUM.  307 

blow  was  aimed,  all  tend  to  prove  that  the  killing  was  wilful;, 
that  there  was  time  to  deliberate;  that  the  blow  was  premedi- 
tated; that  there  was  no  legal  ground  of  provocation,  and  no  im- 
petuous rage  or  passion.  If  you  believe  this  is  the  true  version  of 
the  case,  then  you  are  asked  by  the  Commonwealth  to  convict  the 
prisoner  of  murder  in  the  first  degree,  on  the  ground  that  he 
killed  the  deceased  wilfully,  deliberately  and  premeditatedly,  and 
with  malice  aforethought.  If  you  should  find  this  to  be  so,  it 
would  constitute  in  law  murder  of  the  first  degree. 

But  the  version  of  the  defence  is  that  the  knife  was  not  pre- 
pared ;  that  it  was  one  which  the  prisoner  carried  and  used  in  his 
hunting  excursions,  and  that  he  was  preparing  to  go  out  upon 
such  an  excursion;  that  the  deceased,  a  large  muscular  and  fight- 
ing young  fellow,  was,  in  consequence  of  the  former  altercation, 
seeking  the  prisoner  to  whip  him,  of  which  the  prisoner  was  in- 
formed; that,  discovering  him  in  the  saloon,  he  came  there  to  do 
so,  and  waited  near  by  until  he  came  out,  and  then  returning  and. 
finding  him  standing  beside  the  railing,  he  attacked  him,  struck: 
him  two  blows,  was  diverted  a  moment  by  Riley  Miskelly  taking- 
hold  of  him;  then,  after  casting  off  Riley,  and  dodging  the  blow 
of  Robert  Miskelly,  returned  to  his  assault  upon  the  prisoner, 
and  struck  him  in  the  face;  that  the  prisoner  then  taking  out  his- 
knife,  and  before  the  blow  could  be  repeated  by  the  deceased, 
cut  him  in  the  side,  making  the  wound  which  caused  death,  and 
at  the  time  of  doing  this,  he  was  so  hemmed  in  he  could  not. 
escape.  If  these  be  the  facts — the  true  version  of  the  case,  then, 
the  defence  ask  you  to  say  that  the  wounding  was  only  in  self- 
defence,  demanding  a  verdict  of  entire  acquittal,  and  if  not  ins 
self-defence,  that  at  the  very  most  it  is  but  manslaughter. 

To  excuse  homicide  by  the  plea  of  self-defence,  it  must  appear 
that  the  slayer  had  no  other  possible,  or  at  least  probable,  means 
of  escaping,  and  that  his  act  was  one  of  necessity.  The  act  of 
the  slayer  must  be  such  as  is  necessary  to  protect  the  person  from 
death  or  great  bodily  harm;  and  must  not  be  entirely  dispropor- 
tioned  to  the  assault  made  upon  him.  If  the  slayer  use  a  deadly 
weapon,  and  under  such  circumstances  as  the  slayer  must  be 
aware  that  death  will  be  likely  to  ensue,  the  necessity  must  be 
great,  and  must  arise  from  imminent  peril  of  life,  or  great  bodily 
injury.  If  there  be  nothing  in  the  circumstances  indicating  to 


308  SPECIFIC   CRIMES. 

the  slayer  at  the  time  of  his  act  that  his  assailant  is  about  to  take 
his  life,  or  do  him  great  bodily  harm,  but  his  object  appears  to 
be  only  to  commit  an  ordinary  assault  and  battery,  it  will  not 
excuse  a  man  of  equal,  or  nearly  equal  strength,  in  taking  his  as- 
sailant's life  with  a  deadly  weapon.  In  such  a  case  it  requires  a 
great  disparity  of  size  and  strength  on  part  of  the  slayer,  and  a 
very  violent  assault  on  part  of  his  assailant,  to  excuse  it.  The 
disparity  on  the  one  hand,  and  the  violence  on  the  other,  must  be 
such  as  to  convince  the  jury  that  great  bodily  harm,  if  not  death, 
might  have  been  suffered,  unless  the  slayer  had  thus  defended 
himself,  or  that  the  slayer  had  a  reasonable  ground  to  think  it 
would  be  so.  The  burthen  lies  on  the  prisoner,  in  such  a  case, 
of  proving  that  there  was  an  actual  necessity  for  taking  life,  or 
a  seeming  one  so  reasonably  apparent  and  convincing  to  the 
slayer,  as  to  lead  him  to  Jbelieve  he  could  only  defend  himself  in 
that  way.  The  jury  will  remember  I  am  speaking  of  wilful  kill- 
ing with  a  deadly  weapon.  If  this  intent  to  kill  existed  in  the 
mind  of  the  prisoner  at  the  time  of  giving  the  blow,  two  diffi- 
culties arise  in  the  case  upon  the  plea  of  self-defence,  which  the 
jury  must  pass  upon  and  decide.  The  attack  of  Mohigan  was 
made  with  his  fists,  no  weapon  appears  to  have  been  used  by  him; 
the  blows  appear  to  have  taken  no  great  effect,  and  at  the  time 
Mohigan  was  alone,  while  two  persons  not  unfriendly  to  the  pri- 
soner, were  interfering  on  his  behalf.  Under  these  circumstances 
(if  you  so  believe  them),  was  there  any  real  or  apparent  necessity 
to  take  life  for  the  purpose  of  defence?  Did  Mohigan  do,  or  try 
to  do,  more  than  beat  the  prisoner  with  his  fists?  Was  the  dis- 
parity of  size  and  strength  of  the  prisoner  so  great  as  to  require 
him  to  take  Mohigan's  life  to  prevent  great  bodily  harm  to  him- 
self, in  such  a  case  where  no  weapon  was  used  against  him?  The 
other  difficulty  arising  upon  the  plea  of  self-defence,  is  whether 
the  prisoner  had  not  an  opportunity  of  escaping  down  into  the 
saloon,  or  down  street,  when  Riley  Miskelly  and  Robert  Miskelly 
interfered  in  his  behalf.  Taking  their  testimony,  was  there  any- 
thing to  prevent  his  escape  when  Mohigan  was  diverted  in  his 
attack  from  him?  If  you  believe  Cline,  a  witness  for  defence, 
that  Drum  had  advanced  out  into  the  pavement  before  the  en- 
trance to  the  saloon,  and  was  no  longer  hemmed  in  by  the  rail- 
ing; and  that  Mohigan,  after  leaving  Riley  and  Robert  Miskelly, 


COMMONWEALTH   V.    DRUM. 

advanced  down  the  pavement  (and  the  striking  downward  is  cor- 
roborated, to  some  extent,  by  Stewart),  was  there  anything  to 
prevent  Drum's  escape?  If  you  think  he  could  readily  have  es- 
caped without  striking  the  fatal  blow;  if  you  think  he  was  not 
prevented  from  escaping  by  the  fierceness  of  the  attack,  it  is  not  a 
case  of  self-defence.  The  law  is  too  careful  of  life  to  permit  it  to 
be  taken  without  an  excusable  necessity. 

The  next  inquiry,  and  it  seems  to  me  the  all-important  one,  is 
whether  the  act  of  the  prisoner  was  manslaughter  only.  If  the 
prisoner  did  not  meditate  the  death  of  Mohigan;  if  he  did  not 
prepare  the  knife  to  take  his  life,  and  if  upon  the  sudden  impulse, 
arising  from  the  blows  he  received,  and  the  passion  they  pro- 
duced, he  drew  out  his  knife  in  a  rage,  and  gave  the  fatal  blow,  it 
would  be  manslaughter.  Or,  if  from  the  suddenness  of  the  attack 
and  an  uncontrollable  fear  seizing  him,  but  without  such  an  ex- 
cusable necessity  as  I  have  described,  he  drew  out  the  knife  and 
struck  the  blow  without  malice,  he  would  be  guilty  of  man- 
slaughter only.  Upon  this  branch  of  the  case  I  must  instruct  you 
that  the  previous  occurrences  on  Monday  night  and  Thursday 
night  furnished  no  justification  or  even  excuse  to  Mohigan  in 
making  the  attack  upon  the  prisoner  on  Thursday  night  at  the 
saloon.  This  attack  constituted  a  sufficient  ground  on  part  of  the 
prisoner  to  defend  himself  in  a  proper  manner.  But  this  defence, 
as  I  have  before  said,  must  not  exceed  the  reasonable  bounds  of 
the  necessity.  Here  the  jury  must  attend  to  this  important  dis- 
tinction. The  argument  of  the  defence  is,  that  when  the  slayer 
is  not  in  fault — is  not  fighting  at  the  time,  or  has  given  up  the 
fight,  and  then  slays  his  adversary,  he  is  excusable  as  in  self-de- 
fence. But  though  this  may  be  the  case,  it  is  not  always  so.  The 
true  criterion  of  self-defence,  in  such  a  case,  is  whether  there 
existed  such  a  necessity  for  killing  the  adversary  as  required  the 
slayer  to  do  it  in  defence  of  his  life  or  in  the  preservation  of  his 
person  from  great  bodily  harm.  If  a  man  approaches  another 
with  an  evident  intention  of  fighting  him  with  his  fists  only,  and 
where,  under  the  circumstances,  nothing  would  be  likely  to 
eventuate  from  the  attack  but  an  ordinary  beating,  the  law  can- 
not recognize  the  necessity  of  taking  life  with  a  deadly  weapon. 
In  such  a  case  it  would  be  manslaughter;  and  if  the  deadly 
weapon  was  evidently  used  with  a  murderous  and  bad-hearted  in- 


310  SPECIFIC   CRIMES. 

tent,  it  would  even  be  murder.  But  a  blow  or  blows  are  just  cause 
of  provocation,  and  if  the  circumstances  indicated  to  the  slayer  a 
plain  necessity  of  protecting  himself  from  great  bodily  injury, 
he  is  excusable  if  he  slays  his  assailant  in  an  honest  purpose  of 
saving  himself  from  this  great  harm. 

The  right  to  stand  in  self-defence  without  fleeing  has  been 
strongly  asserted  by  the  defence.  It  is  certainly  true  that  every 
citizen  may  rightfully  traverse  the  street,  or  may  stand  in  all 
proper  places,  and  need  not  flee  from  every  one  who  chooses  to 
assail  him.  Without  this  freedom  our  liberties  would  be  worth- 
less. But  the  law  does  not  apply  this  right  to  homicide. 
The  question  here  does  not  involve  the  right  of  merely  ordinary 
defence,  or  the  right  to  stand  wherever  he  may  rightfully  be, 
but  it  concerns  the  right  of  one  man  to  take  the  life  of  another. 
Ordinary  defence  and  the  killing  of  another  evidently  stand 
upon  different  footing.  When  it  comes  to  a  question  whether 
one  man  shall  flee  or  another  shall  live,  the  law  decides  that  the 
former  shall  rather  flee  than  that  the  latter  shall  die. 

But  if  the  prisoner  had  prepared  the  knife  and  intended  to  use 
it  for  the  purpose  of  killing  Mohigan,  and  merely  awaited  for  an 
assault  by  him  for  an  occasion  to  use  it,  and  in  consequence  of 
this  premeditated  design,  did  use  it,  it  would  be  murder,  and  if 
the  act  was  at  the  time  done  with  coolness  and  deliberation,  it 
would  be  murder  in  the  first  degree.  If,  however,  he  had  no 
specific  intention  of  taking  life,  intended  not  to  kill  but  only  to 
maim  and  wound,  it  would  be  only  murder  in  the  second  degree. 
It  is  the  province  of  the  jury  to  decide  upon  the  credibility  of  the 
witnesses,  the  kind  of  offence,  and,  if  it  is  a  murder,  to  ascertain 
whether  it  be  of  the  first  or  second  degree.  In  deciding  upon 
the  case,  or  upon  any  material  part  of  it,  it  is  the  duty  of  the 
jury  to  give  the  prisoner  the  benefit  of  any  reasonable  doubt 
arising  out  .of  the  evidence  which  prevents  them  from  coming  to 
a  satisfactory  conclusion.  But  this  doubt  must  fairly  arise  out  of 
the  evidence,  and  not  be  merely  fancied  or  conjured  up.  A  jury 
must  not  raise  a  mere  fanciful  or  ingenious  doubt  to  escape  the 
consequences  of  an  unpleasant  verdict.  It  must  be  an  honest 
doubt — such  a  difficulty  as  fairly  strikes  a  conscientious  mind 
and  clouds  the  judgment.  If  the  mind  be  fairly  satisfied  of  a 
fact,  on  the  evidence — as  much  so  as  would  induce  a  man  of 


COMMONWEALTH   V.   DRUM.  311 

reasonable  firmness  and  judgment  to  take  the  fact  as  true,  and  to 
act  upon  it  in  a  matter  of  importance  to  himself,  it  would  be 
sufficient  to  rest  a  verdict  upon  it.  As  to  whether  a  reasonable 
doubt  shall  establish  the  existence  of  a  plea  of  self-defence,  I 
take  the  law  to  be  this:  If  there  be  a  reasonable  doubt  that  any 
offence  has  been  committed  by  the  prisoner,  it  operates  to  acquit. 
But  if  the  evidence  clearly  establishes  the  killing  by  the  prisoner 
purposely,  with  a  deadly  weapon,  an  illegal  homicide  of  some 
kind  is  established,  and  the  burthen  then  falls  upon  the  prisoner, 
and  not  on  the  Commonwealth,  to  show  that  it  was  excusable  as 
an  act  of  self-defence.  If,  then,  his  evidence  leaves  his  extenua- 
tion in  doubt,  he  cannot  be  acquitted  of  all  crime,  but  must  be 
convicted  of  homicide  in  some  of  its  grades,  of  manslaughter  at 
least. 

Starting,  then,  with  the  legal  presumption  of  innocence  in 
favor  of  the  prisoner,  until  the  proof  fairly  establishes  his  guilt, 
the  first  question  to  be  decided  is,  whether  he  is  guilty  of  murder? 
If  he  formed  the  design  to  kill  Mohigan — if,  in  consequence  of 
this  purpose,  he  prepared  or  procured  a  deadly  weapon,  and  car- 
ried it  about  with  him  to  be  used  when  occasion  offered  itself; 
and,  if  when  the  opportunity  arose,  he  did  use  it,  it  would  be 
murder.  If  at  the  time  he  did  the  act  he  thought  of  his  purpose 
to  kill  him,  and  had  time  to  think  that  he  would  execute  it,  and 
formed  fully  in  his  mind  the  conscious  design  of  killing,  and  had 
time  to  think  of  the  weapon  he  had  prepared,  and  that  he  would 
use  it,  and  accordingly  so  did  use  it,  it  would  be  murder  of  the 
first  degree.  But  though  he  had  prepared  and  carried  the  wea- 
pon, intending  to  use  it,  if,  at  the  time  the  attack  was  made  upon 
him  he  had  no  real  intention  of  killing  Mohigan — did  not  delib- 
erate upon  his  act — but  in  the  suddenness  of  the  occasion  and 
impetuousness  of  his  temper  he  intended  only  to  cut,  wound  or 
do  great  bodily  harm  to  him,  it  would  be  murder  of  the  second 
degree  only. 

But  if  the  weapon  was  not  prepared  for  the  occasion;  if  the 
prisoner  entertained  no  previous  purpose  of  killing  Mohigan  or 
of  doing  him  great  bodily  harm;  and  if,  under  the  impulse  of 
passion,  caused  by  Mohigan's  blows,  and  arising  when  they  were 
inflicted,  the  prisoner  struck  the  fatal  blow  without  malice,  he  is 
guilty  of  manslaughter  only;  even  though  on  the  instant  and  at 
the  suddenness  of  the  provocation  he  intended  to  kill  Mohigan. 


312  SPECIFIC  CRIMES. 

Lastly,  if  not  guilty  of  manslaughter,  was  the  killing  only  an 
act  of  self-defence?  On  this  subject  I  have  already  said  enough. 

You  will  now  take  the  case  and  render  such  a  verdict  as  the 
evidence  warrants;  one  which  will  do  justice  to  the  Common- 
wealth and  to  the  prisoner. 


STATE  v.  WALKER. 

Court  of  Oyer  and  Terminer  of  Delaware,  1887. 
9  Houston,  464;  33  All.  227. 

INDICTMENT  for  murder. 

COMEGYS,  C.  J.,  charging  the  jury: 

All  homicides,  by  the  law  of  this  State,  are  either  justifiable, 
excusable  or  felonious. 

Justifiable  homicides  are  such  as  are  authorized  by  law, 
familiar  examples  of  which  are  the  execution  of  a  prisoner  by  a 
sheriff  under  legal  sentence,  the  suppression  by  peace  officers  of 
a  riot  when  it  cannot  be  put  down  otherwise,  etc. 

Excusable  homicides  are  those  not  properly  justifiable,  but 
allowable  under  certain  circumstances,  for  example  defence  of 
one's  own  person,  or  that  of  some  member  of  his  household,  as 
wife,  children,  servant. 

Felonious  homicides,  in  their  turn,  are  divided  into  such  as  are 
designated  as  malicious,  and  not  malicious. 

Homicides  that  are  not  malicious  are  manslaughters;  those 
malicious  are  murders. 

I  will  take  these  up  in  the  order  in  which  I  have  referred  to 
them,  and  endeavor  to  give  to  you,  in  plain  language,  their  sev- 
eral distinctions  from  each  other — except  that  I  shall  not  go 
further  into  the  subject  of  justifiable  homicides,  as  this  is  not  one 
of  them.  It  is  claimed  by  the  prisoner's  counsel  to  come  strictly 
and  fully  within  the  class  called  homicides  in  self-defence. 

The  placing  the  prisoner's  case  upon  this  ground,  makes  it 
necessary  that  I  should  go  into  the  law  of  murder  and  man- 
slaughter, not  only  to  distinguish  one  from  the  other  and  form 


STATE  V.   WALKER.  313 

the  present  defence,  but  also  to  enable  you  to  understand  the  con- 
tention of  the  attorney  general  that  the  case  is  one  of  murder  of 
the  first  degree,  as  charged  in  the  indictment.  I  shall  also  in- 
struct you  sufficiently  I  trust  in  the  law  of  self-defence,  to  enable 
you  to  determine  whether  this  is  a  case  of  that  kind. 

Murder  is  the  unlawful  killing  by  one  man  of  another  with 
malice  aforethought.  Wherever  one  kills  another,  with  a  wicked 
purpose  of  taking  his  life,  or  doing  him  some  great  bodily  harm, 
it  is  murder,  and  murder  of  the  first  degree.  Where,  also,  one  in 
endeavoring  to  perpetrate  some  crime  punishable  with  death, 
kills  another,  he  is  guilty,  by  our  statute,  of  murder  of  the  first 
degree.  Where  one  in  endeavoring  to  commit  some  felonious 
crime,  kills  a  human  being,  or  kills  one  in  doing  some  deliberate 
cruel  act,  he  is  also  guilty  of  murder,  but  not  murder  of  the  first 
degree  as  our  statute  describes  it:  but  is  guilty  of  the  crime  of 
murder  of  the  second  degree  under  the  statute.  These  are  cases 
of  malicious  homicide:  and  without  the  ingredient  of  malice, 
there  can  be  no  murder.  Now  what  is  malice,  to  make  a  homi- 
cide murder?  Malice  is  a  state  and  condition  of  the  mind  or 
heart,  which  is  best  understood  as  wickedness.  Its  existence  in 
the  case  of  a  homicide  is  shown  by  the  character  of  the  act  done. 
If  there  be  preconceived  purpose  to  take  life,  as  shown  by 
threats,  lying  in  wait,  the  selection  of  a  deadly  instrument  or 
weapon  likely  to  produce  death  and  use  of  it  in  pursuance  of  the 
threats,  etc.,  it  is  called  express  malice  aforethought,  and  murder 
of  the  first  degree.  Where  such,  or  the  like  circumstances  do  not 
exist,  and  yet  the  wantonness  of  the  act  done,  as  shooting  or  driv- 
ing into  a  crowd,  or  its  wickedness,  in  the  deliberateness  and 
cruelty  with  which  it  is  perpetrated,  evince  a  depraved  and 
vicious  disposition,  or  as  it  sometimes  expressed  at  heart  regard- 
less of  social  duty  and  fatally  bent  on  mischief,  then  there  is 
malice  implied  in  law,  and  murder  of  the  second  degree.  These 
degrees  were  unknown  to  our  law  before  1852:  every  malicious 
homicide  was  punishable  with  death  down  to  that  time,  now 
those  of  the  second  degree  are  punished  by  imprisonment  for 
life. 

Manslaughter  is  committed,  generally,  where  two  men  fight 
upon  a  sudden  affray,  and,  in  the  heat  of  blood,  one  kills  the 
other.  If  the  fight  were  originated  between  them  with  the  pur- 


314  SPECIFIC   CRIMES. 

pose  of  taking  life,  and  one  were  slain,  it  would  be  murder  of  the 
first  degree — the  mutual  agreement  to  fight  to  the  death  if  nec- 
essary would  not  remove  such  a  homicide  from  the  scope  of  mur- 
der of  the  first  degree.  Killing  a  man  in  a  duel  is  murder  of  such 
degree.  The  contest,  to  avoid  a  higher  crime  than  manslaughter, 
must  have  been  unpremeditated  and  sudden,  and  the  slaying 
must  have  been  under  the  influence  of  such  a  degree  of  heat,  or 
transport  of  passion  as  virtually  to  deprive  the  slayer  of  control 
over  himself.  If  the  jury  do  not  find  this  to  be  the  case,  then 
they  would  be  justified  in  believing  that  the  slayer  acted  under 
the  influence  of  preconceived  malice  or  design,  and  availed  him- 
self of  the  occasion  to  exercise  it,  and  therefore  find  him  guilty 
of  murder  of  the  first  degree. 

Self-defence,  or  killing  another  in  defence  of  one's  own  per- 
son, is,  mostly,  where  one  is  suddenly  assailed  by  another  without 
any  fault  on  his  part,  and  under  such  circumstances  as  to  give 
him  just  and  reasonable  ground  to  believe  that  he  is  in  danger 
of  losing  his  life  or  suffering  some  great  bodily  harm,  or,  as 
oftentimes  expressed  to  indicate  the  degree  of  such  harm,  enor- 
mous bodily  harm.  In  such  case  the  assailed  need  not  wait  for 
the  apprehended  injury  by  his  adversary,  but  may  take  his  life 
if  necessary  to  protect  his  own  person.  But  before  he  may  do 
this,  he  must  do  all  in  the  power  of  a  reasonable  man,  similarly 
circumstanced,  to  avoid  the  assault  of  his  adversary.  If  it  be  so 
suddenly  made,  and  with  such  a  weapon  as  is  likely  to  produce 
death  or  such  enormous  bodily  harm  as  to  imperil  life,  and  the 
assailed  cannot  escape  the  fury  of  his  adversary,  he  may  slay  his 
enemy.  But  with  whatever  weapon  the  attack  is  made  or  at- 
tempted, if  there  are  means  of  escape  open  to  the  assailed,  he  may 
not  take  the  other's  life  until  they  have  been  tried  and  failed  to 
protect.  In  other  words,  he  must  retreat  from  his  assailant  or 
pursuer  as  far  as  he  can,  and  never  until  he  has  done  this  un- 
availingly,  can  he  meet  his  opponent  and  slay  him.  This  is 
illustrated  by  the  familiar  instance  given  of  two  men  in  a  room 
and  one  assailing  another  to  take  his  life  or  inflict  upon  him  some 
great  harm,  as  mentioned;  in  such  case  the  assailed  must  retreat 
as  far  as  he  can — be  driven  to  the  wall,  as  we  often  say  figura- 
tively with  respect  to  other  pressure  in  life — before  he  takes  upon 
himself  the  final  remedy  for  protection.  If  life  or  person  can  be 


STATE  V.   WALKER.  315 

protected  in  any  other  way  than  by  taking  life,  it  must  be  done, 
or  the  homicidal  act  will  be  treated  in  law  as  a  malicious,  or 
murderous  one.  The  law  is  so  tender  of  human  life  that  no  man 
must  take  that  of  another  man  even  in  the  exercise  of  what  is 
oratorically  called  the  sacred  right  of  self-defence,  unless  he  has 
no  power  reasonably  within  his  reach  by  retreat  or  otherwise,  to 
save  his  own  life  without  doing  so,  or  protecting  his  own  person 
from  great  and  dangerous  harm. 

Having  now  given  you,  I  hope,  all  necessary  instruction  about 
the  law  of  homicide,  I  will  turn  my  attention  to  the  prayers  of 
respective  counsel  in  this  trial.  And  I  will  take  those  of  the  at- 
torney general  first. 

(Here  read  it.) 

To  the  first  I  answer  in  the  affirmative — that  is,  that  Barr's 
quarrel  with  the  prisoner,  has  of  itself  nothing  to  do  with  the 
case.  But  I  think  it  proper  to  add,  that  if  from  the  circum- 
stances deposed  to  by  the  witnesses  for  the  defence,  if  you  believe 
their  testimony  with  respect  to  them,  and  discredit  that  of  the 
State's  witnesses  with  respect  to  the  matter,  you  think  a  reason- 
able man  would  have  been  justified  in  believing  that  Mulvey  was 
advancing  upon  him  as  an  accomplice  or  confederate  of  Barr, 
then  the  case  is  the  same  as  if  Barr  had  acted  alone  and  been 
where  Mulvey  was  at  the  time  of  the  fatal  blow.  Under  such  cir- 
cumstances, whatever  he  could  have  done  to  Barr  could  have 
been  done  to  Mulvey.  I  have  already  gone  into  the  law  far 
enough  to  point  out  to  you  that  life  cannot  be  taken,  if  adequate 
protection  by  retreat  or  otherwise  can  be  secured  otherwise. 

To  the  second  (here  read  it)  I  answer  that  no  more  words  or 
gestures  will  reduce  homicide  from  murder  to  manslaughter — no 
matter  how  offensive  or  insulting  they  may  be.  If  such  excuse 
only  exist  for  the  use  of  a  deadly  weapon,  the  law  affixes  the  term 
malicious  to  the  act,  and  it  is  murder. 

To  the  third  (here  read  it)  I  answer  that  it  is  true  that  the 
natural  and  probable  consequences  of  an  act,  that  is  those  that 
are  likely  to  flow  from  it,  are  presumed  in  law  to  be  intended  by 
the  actor;  and  the  burden  of  showing  the  contrary  is  on  him; 
and  further,  that  where  killing  is  admitted,  it  is  presumed  to  be 
done  with  malice  aforethought,  if  a  deadly  weapon  be  used. 


316  SPECIFIC   CRIMES. 

With  regard  to  the  prayers  of  the  prisoner's  counsel,  I  answer. 

As  to  the  first  (read  it)  I  answer  that  to  justify  taking  life  by 
a  person  assailed,  it  must  be  to  protect  his  own,  or  his  person 
from  great  bodily  harm,  and  there  must  be  no  other  way  open 
to  him  as  a  reasonable  man,  by  retreat,  or  otherwise  to  do  so.  In 
such  a  dilemma  any  weapon  of  defence  may  be  used. 

As  to  the  second  (read  it)  the  law  does  not  imply  malice  in  any 
case  where  death  ensues  from  the  use  of  a  weapon  neither  deadly 
nor  dangerous  in  itself:  but  whether  it  be  dangerous  or  deadly  is 
a  question  for  the  jury  upon  satisfactory  proof  of  what  it  was, 
or  if  such  cannot  be  made,  of  the  effect  it  produced.  Of  course  no 
one  can  be  convicted  of  murder  without  proof,  express  or  im- 
plied, of  malice. 

As  to  the  third  (read  it)  I  repeat  the  substance  of  the  charge 
in  the  Talley  case,  upon  this  point  of  reasonable  doubt:  that  if 
you,  gentlemen,  after  a  calm  review  of  all  the  testimony  in  this 
case,  and  regarding  it  alone,  have  in  your  minds  a  reasonable 
doubt  of  the  guilt  of  the  prisoner,  a  doubt  growing  out  of  the 
testimony  before  you,  the  prisoner  is  entitled  to  the  benefit  of 
that  doubt  and  ought  to  be  acquitted  in  manner  and  form  as  he 
stands  indicted,  which  is  for  murder  of  the  first  degree.  But  if 
you  so  doubt,  and  yet  believe  from  the  testimony  before  you  that 
he  is  guilty  either  of  murder  of  the  second  degree  or  of  man- 
slaughter, as  I  have  defined  them  respectively  to  you,  you  may 
convict  him  in  your  discretion  of  that  one  of  them,  which  in  your 
judgment  the  facts  will  support  you  in  determining. 

Verdict  of  murder  in  the  second  degree. 

Com.  v.  Webster,  5  Gush.  295;  Hopkins  v.  Com.,  50  Perm.  St.  9;  People 
v.  Williams,  43  Cal.  344;  Jones  v.  Com.,  75  Pa.  403;  People  v.  Croway, 
56  Cal.  36;  N.  Y.  Penal  Code  Sec.  183;  State  v.  Smith,  56  Minn.  78;  Bish. 
I.,  Sec.  600;  Clark,  p.  158;  Wharton,  Sec.  303;  Hawley  &  McGregor, 
p.  137. 

Murder  and  manslaughter:  Maher  v.  People,  10  Mich.  212;  Com.  v. 
Macloon,  101  Mass.  1;  Wellar  v.  People,  30  Mich.  16;  Nye  v.  People,  35 
Mich.  16;  State  v.  Roberts,  1  Hawks  349;  Shufflin  v.  People,  62  N.  Y. 
229;  Reg.  v.  Rothwell,  12  Cox  C.  C.  145;  Reg.  v.  Porter,  12  Cox  C.  C. 
444;  Grainger  v.  State,  5  Yerg.  459;  Erwin  v.  State,  29  Ohio  St.  186; 
Judge  v.  State,  58  Ala.  406. 

Murder  defined  in:  Perry  v.  State,  43  Ala.  21;  Temple  v.  State,  40  Ala. 
350;  State  v,  Phelps,  24  La.  Ann.  493;  McAdams  v.  State,  25  Ark.  405; 


COMMONWEALTH  V.   BOWEN.  317 

Bradley  v.  State,  31  Ind.  492;  Alford  v.  State,  33  Ga.  303;  Pamore  v. 
State,  29  Ark.  248;  Smith  v.  State,  49  Ga.  482;  State  v.  Morphy,  33  la. 
270;  State  v.  Jones,  64  Mo.  391;  U.  S.  v.  Magill,  1  Wash.  C.  0.  465;  Com. 
v.  Drum,  58  Pa.  St.  9. 


(a1)  Self  Murder  or  Suicide. 

Suicide  or  self-murder  was  a  felony  at  common  law, 
and  punishable  by  a  forfeiture  of  goods  and  chattels.  In 
America  there  being  no  forfeiture,  it  is  a  punishable  offence. 

Bish.  Or.  Law,  511,  615,  616;  Com.  v.  Mink,  123  Mass.  422;  The  Penal 
Code  of  Pa.;  Shields,  vol.  I.,  429. 

At  the  common  law  one  who  advises,  aids  or  assists 
another  to  kill  himself,  and  the  act  is  done  in  his  presence 
was  guilty  of  murder.  If  done  out  of  his  presence  the  act 
of  so  advising,  aiding  and  assisting  was  not  punishable. 

COMMONWEALTH  v.  BOWEN. 

Supreme  Court  of  Massachusetts,  1816. 
13  Mass.  354. 

THE  indictment  against  the  prisoner  contained  two  counts. 
The  first  count  alleged,  that  one  Jonathan  Jewett,  in  the  night 
time  of  the  8th  of  November  last,  at  Northampton,  murdered 
himself  by  hanging  himself;  and  that  the  prisoner,  Bowen,  be- 
fore the  said  self-murder,  on  etc.,  at,  etc.,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  did  counsel,  hire,  persuade,  and 
procure  the  said  Jewett  the  said  felony  and  murder  of  himself 
to  do  and  commit;  and  so  that  the  said  Bowen  feloniously,  etc., 
did  kill  and  murder,  etc.  The  second  count  alleged,  that  the  pri- 
soner murdered  the  said  Jewett  by  hanging  him;  against  the 
form  of  the  statute,  etc. 

The  evidence  was,  in  substance,  that  Jewett  was  convicted,  at 
the  last  September  term  in  this  county,  of  the  wilful  murder  of 
his  father,  and,  being  sentenced  to  suffer  death,  the  9th  of 


318  SPECIFIC   CRIMES. 

November  last  was  appointed,  by  the  supreme  executive  author- 
ity of  the  Commonwealth,  for  his  execution.  The  prisoner  was 
confined  in  an  apartment  of  the  prison  adjacent  to  that  in  which 
Jewett  was,  and  in  such  a  situation  that  they  could  freely  con- 
verse together.  The  prisoner  repeatedly  and  frequently  advised 
and  urged  Jewett  to  destroy  himself,  and  thus  disappoint  the 
sheriff,  and  the  people  who  might  assemble  to  see  him  executed; 
and,  in  the  night  preceding  the  day  fixed  for  his  execution,  he 
put  an  end  to  his  life  by  suspending  himself  by  a  cord  from  the 
grate  of  the  cell  in  which  he  was  imprisoned.  An  inquisition  was 
taken  by  the  coroner's  jury,  who  returned  that  he  was  a  felon  of 
himself. 

Morton  (attorney  general)  for  the  Commonwealth,  contended, 
that  the  prisoner  was  guilty  of  murder,  as  principal ;  and  he  cited 
and  relied  chiefly  on  the  following  authority  from  Kelyng's  Re- 
ports, 52.  "Memorandum,  that  my  brother,  Twisden,  showed  me 
a  report  which  he  had  of  a  charge  given  by  Justice  Jones  to  the 
grand  jury,  at  the  King's  Bench  barre,  Michaelmas  Term,  9  Car. 
l,in  which  he  said,  that  poisoning  another  was  murder  at  common 
law.  And  the  statute  of  1  Ed.  6  was  but  declaratory  of  the 
common  law,  and  an  affirmation  of  it.  If  one  drinks  poison  by 
the  provocation  of  another,  and  dieth  of  it,  this  is  murder  in  the 
person  that  persuaded  it.  And  he  took  this  difference.  If  A. 
give  poison  to  J.  S.,  to  give  to  J.  D.,  and  J.  S.,  knowing  it  to  be 
poison,  give  it  to  J.  D.,  who  taketh  it  in  the  absence  of  J.  S.,  and 
dieth  of  it;  in  this  case,  J.  S.,  who  gave  it  to  J.  D.,  is  principal; 
and  A.,  who  gave  the  poison  to  J.  S.,  and  was  absent  when  it 
was  taken,  is  but  accessory  before  the  fact.  But  if  A.  buyeth 
poison  for  J.  S.,  and  J.  S.,  in  the  absence  of  A.,  taketh  it  and 
dieth  of  it,  in  this  case  A.,  though  he  be  absent,  yet  he  is  prin- 
cipal. So  it  is,  if  A  giveth  poison  to  B.,  to  give  unto  C.,  and  B., 
not  knowing  it  to  be  poison,  but  believing  it  to  be  a  good 
medicine,  giveth  it  to  C.,  who  dieth  of  it;  in  this  case,  A.,  who  is 
absent,  is  principal,  or  else  a  man  should  be  murdered,  and  there 
should  be  no  principal.  For  B.,  who  knoweth  nothing  of  the 
poison,  is  in  no  fault,  though  he  gave  it  to  C.  So  if  A.  puts  a 
sword  into  the  hands  of  a  madman,  and  bids  him  kill  B.  with  it, 
and  then  A.  goeth  away,  and  the  madman  kills  B.  with  the 
sword,  as  A.  commanded  him,  this  is  murder  in  A.,  though  ab- 


COMMONWEALTH   V.   BOWEN.  319 

sent,  and  he  is  principal;  for  it  is  no  crime  in  the  madman,  who 
did  the  fact  by  reason  of  his  madness." 

Nor  was  the  murder  less  atrocious  in  the  case  at  bar,  or  the 
guilt  of  the  prisoner  less  heinous,  because  the  death  of  Jewett 
must  inevitably  have  taken  place  within  a  few  hours;  for  a  man 
is  under  the  protection  of  the  law  until  he  dies  by  order  of  law. 
Indeed,  so  strict  is  the  law  in  regard  to  life,  that,  if  the  sheriff  is, 
by  his  warrant,  commanded  to  hang  one,  and  he  beheads  him, 
the  sheriff  in  such  case  is  guilty  of  felony,  if  not  of  murder. 

Bates  and  Lyman,  for  the  prisoner,  argued,  that  murder  at 
common  law  is  confined  to  the  taking  the  life  of  another,  and  a 
felo  de  se  is  never  called  a  murderer.  Our  legislature  seem  to  use 
the  word  in  the  same  definite  sense.  By  the  statute  of  1804,  c. 
123,  sec.  1,  it  is  enacted,  "that,  if  any  person  shall  commit  the 
crime  of  wilful  murder,  or  shall  be  present,  aiding  and  abetting 
in  the  commission  of  such  crime,  or,  not  being  present,  shall 
have  been  accessory  thereto  before  the  fact,  by  counselling,  hir- 
ing, or  otherwise  procuring  the  same  to  be  done,  every  such  of- 
fender shall  suffer  the  punishment  of  death."  It  is  plain,  that 
suicide  is  not  included  in  this  clause;  for  it  provides  that  he  who 
counsels,  etc.,  shall  receive  the  same  punishment  as  the  principal 
offender.  The  crime,  then,  which  the  prisoner  is  charged  with 
counselling  and  procuring,  was  not  "such  crime"  as  the  statute 
contemplates,  namely,  murder,  but  felonia  de  se.  For  this  latter 
crime  a  punishment  was  provided  by  a  law  of  the  colony,  passed 
in  1660.  That  suicide  was  not  intended  to  be  included  in  the 
forecited  enacting  clause,  is  further  evident  from  the  second  sec- 
tion of  the  same  statute,  which  provides,  among  other  things,  for 
the  punishment  of  such  as  shall  knowingly  receive,  harbor,  com- 
fort, etc.,  any  principal  offender  after  a  wilful  murder  done  and 
committed  as  aforesaid.  It  seems,  then,  that  no  punishment  has 
been  provided  by  statute  for  him  who  counsels  the  commission  of 
suicide. 

At  the  common  law,  in  all  cases  of  suicide,  where  the  subject 
of  the  suicide  is  not  a  felo  de  se,  those  who  are  counselling,  hir- 
ing, and  procuring  the  suicide  to  be  committed  are  principal 
felons.  Because,  in  such  case,  the  deceased  person  being  in- 
nocent of  his  own  destruction,  he  who  would  otherwise  have  been 
an  accessory,  from  the  necessity  of  the  case,  is  deemed  a  prin- 


320  SPECIFIC   CRIMES. 

cipal.  Such  are  the  examples  put  by  way  of  a  memorandum  in 
the  passage  cited  by  the  attorney-general  from  Kelyng.  But  in 
this  case  Jewett  was  a  felo  de  se.  It  is' so  alleged  in  the  indict- 
ment, and  the  allegation  has  been  proved  by  the  inquisition  of 
the  coroner's  jury.  The  prisoner,  then,  if  indictable  at  all,  was 
indictable  only  as  an  accessory.  He  cannot  be  convicted  as  a 
principal. 

It  was  insisted,  also,  by  the  counsel  for  the  prisoner,  that  it 
was  not  sufficient  for  the  government,  to  produce  a  conviction,  to 
prove  only,  that  Jewett  killed  himself,  and  that  Bowen  advised 
and  urged  him  to  commit  the  fact.  It  must  be  made  to  appear, 
that  the  advice  was  the  procuring  cause  of  the  death.  And  on 
this  point  it  was  strongly  argued  that  the  evidence  wholly  failed. 

The  attorney  general,  in  reply,  insisted,  that  the  adviser  of 
one  who  commits  a  felony  of  himself,  is  a  murderer,  and  this  is 
laid  down  by  Blackstone.  The  facts  in  proof  abundantly  showed 
the  prisoner  to  have  been  guilty  of  this  offence;  and  that  his 
advice  was  at  least  one  of  the  procuring  causes  of  Jewett's  death. 

PABKEE,  C.  J.,  in  charging  the  jury,  stated,  that,  considering 
the  similarity  between  the  nature  of  suicide  and  the  murder  of 
another,  and  the  consistency  and  uniformity  of  writers  and  prin- 
ciples on  this  particular  species  of  murder,  if  the  jury  should  find 
the  facts  as  alleged  in  the  indictment,  they  might  safely  pro- 
nounce the  prisoner  guilty.  The  important  fact  to  be  inquired 
into  was,  whether  the  prisoner  was  instrumental  in  the  death  of 
Jewett,  by  advice  or  otherwise.  (Here  his  honor  recapitulated 
the  evidence.)  The  question,  then,  is,  Did  this  advice  procure  the 
death  of  Jewett? 

The  government  is  not  bound  to  prove  that  Jewett  would  not 
have  hung  himself,  had  Bowen's  counsel  never  reached  his  ear. 
The  very  act  of  advising  to  the  commission  of  a  crime  is  of  itself 
unlawful.  The  presumption  of  law  is,  that  advice  has  the  in- 
fluence and  effect  intended  by  the  adviser,  unless  it  is  shown  to 
have  been  otherwise;  as,  that  the  counsel  was  received  with  scoff, 
or  was  manifestly  rejected  and  ridiculed  at  the  time  it  was  given. 
It  was  said  in  the  argument,  that  Jewett's  abandoned  and  de- 
praved character  furnishes  ground  to  believe  that  he  would  have 
committed  the  crime  without  such  advice  from  Bowen.  Without 


COMMONWEALTH   V.   BOWEN.  321 

doubt  he  was  a  hardened  and  depraved  wretch.  But  it  is  in  man's 
nature  to  revolt  at  the  idea  of  self-destruction.  Where  a  person 
is  predetermined  upon  the  commission  of  this  crime,  the  season- 
able admonitions  of  a  discreet  and  respected  friend  would  prob- 
ably tend  to  overthrow  his  determination.  On  the  other  hand, 
the  counsel  of  an  unprincipled  wretch,  stating  the  heroism  and 
courage  the  self-murderer  displays,  might  induce,  encourage,  and 
fix  the  intention,  and  ultimately  procure  the  perpetration  of  the 
dreadful  deed.  And,  if  other  men  would  be  influenced  by  such 
advice,  the  presumption  is,  that  Jewett  was  so  influenced.  He 
might  have  been  influenced  by  many  powerful  motives  to  destroy 
himself.  Still,  the  inducements  might  have  been  insufficient  to 
procure  the  actual  commission  of  the  act,  and  one  word  of  ad- 
ditional advice  might  have  turned  the  scale. 

If  you  are  satisfied  that  Jewett,  previously  to  any  acquaintance 
or  conversation  with  the  prisoner,  had  determined  within  himself 
that  his  own  hand  should  terminate  his  existence,  and  that  he 
esteemed  the  conversation  with  the  prisoner,  so  far  as  it  affected 
himself,  as  mere  idle  talk,  let  your  verdict  say  so.  But,  if  you 
find  the  prisoner  encouraged  and  kept  alive  motives  previously 
existing  in  Jewett's  mind,  and  suggested  others  to  augment  their 
influence,  you  will  decide  accordingly. 

It  may  be  thought  singular  and  unjust,  that  the  life  of  a  man 
should  be  forfeited,  merely  because  he  has  been  instrumental  in 
procuring  the  murder  of  a  culprit  within  a  few  hours  of  death  by 
the  sentence  of  the  law.  But  the  community  has  an  interest  in 
the  public  execution  of  criminals;  and  to  take  such  an  one  out  of 
the  reach  of  the  law  is  no  trivial  offence.  Further,  there  is  no 
period  of  human  life  which  is  not  precious  as  a  season  of  repent- 
ance. The  culprit,  though  under  sentence  of  death,  is  cheered  by 
hope  to  the  last  moment  of  his  existence.  And  you  are  not  to 
consider  the  atrocity  of  this  offence  in  the  least  degree  diminished 
by  the  consideration  that  justice  was  thirsting  for  its  sacrifice; 
and  that  but  a  small  portion  of  Jewett's  earthly  existence  could, 
in  any  event,  remain  to  him. 

The  jury  found  the  prisoner  not  guilty;  probably  from  a  doubt 
whether  the  advice  given  by  him  was,  in  any  measure,  the  procur- 
ing cause  of  Jewett's  death. 


21 


322  SPECIFIC   CRIMES. 

Rex  V.  Tyson,  Russ.  &  Ry.  522;  Com.  r.  Dennis,  105  Mass.  162; 
Blackburn  v.  State,  23  Ohio  St.  146;  Clark,  p.  164;  Bishop  I.,  Sec. 
510  (2);Wharton,  Sec.  216;  Hawley  &  McGregor,  p.  144. 

NOTE.— By  some  State  codes  one  who  abets,  aids  or  assists  another  in 
taking  his  life  is  guilty  of  manslaughter  in  the  first  degree. 

Minn.  Stat.  1894,  Sec.  6429;  N.  Y.  Penal  Code,  Sec.  175. 

NOTE.— Under  the  common  law  an  attempt  to  commit  self  murder 
Is  an  Indictable  misdemeanor;  under  some  codes  it  is  a  felony,  and  one 
aiding  or  assisting  another  to  such  attempt  is  guilty  of  a  felony. 

Clark,  p.  164;  Wharton,  Sec.  454;  Bish.  Cr.  Law,  Sec.  1187;  Minn.  Stat. 
1894,  Sees.  6426,  6427,  6432;  N.  Y.  Penal  Code,  Sec.  178;  Penna.:  See 
Shields'  Penal  Code. 


(b1)  Resulting  from  an  Attempt. 
(I2)  To  kill  the  person  killed. 

PEOPLE  v.  KERRIGAN. 

Court  of  Appeals  of  New  York,  1895. 
147  N.  Y.  210;  41  N.  E.  494. 

O'BRIEN,  J.  The  defendant  was  convicted  of  the  murder  of 
one  Aaron  Alexander  in  a  saloon  in  Rivington  street  in  the  city 
of  New  York  on  the  night  of  April  3,  1894.  That  the  deceased 
died  from  the  effects  of  a  pistol  shot,  fired  by  the  defendant  at  the 
time  and  place  above  mentioned,  is  not  disputed,  the  only  ques- 
tion being  whether  the  other  elements  of  intent,  deliberation  and 
premeditation  necessary  to  constitute  the  crime  were  sufficiently 
established.  It  appeared  from  the  testimony  that  the  deceased 
was  a  strong,  powerful  man,  who  was  disposed  to  be  quarrelsome, 
and  who  actually  had  some  quarrel  or  dispute  with  the  defend- 
ant about  a  week  before  the  homicide.  The  particulars  of  this 
difficulty  do  not  distinctly  appear,  and  they  are  material  only  so 
far  as  they  tend  to  show  that  on  the  night  of  the  homicide  the 
deceased  and  the  defendant  met  in  the  saloon  under  the  influence 
of  those  feelings  and  passions  which  had  been  incited  by  a  pre- 
vious quarrel  or  serious  disagreement.  It  appears  that  the  de- 
ceased, the  defendant  and  several  other  persons,  who  associated 


PEOPLE  V.   KERRIGAN.  323 

more  or  less  with  them,  were  in  the  habit  of  meeting  at  this 
saloon  in  the  evening  for  the  purpose  of  drinking  and  card  play- 
ing, and,  on  the  evening  of  the  homicide,  were  all  together  at 
an  early  hour.  The  immediate  cause  of  the  difficulty  which  pre- 
ceded the  shooting  was  what  the  deceased  evidently  took  to  be  a 
slight  offered  him  by  the  defendant.  It  appears  that  the  de- 
ceased, the  defendant  and  five  other  persons  were  in  the  bar- 
room of  the  saloon  on  the  night  in  question,  and  the  defendant 
asked  the  five  other  persons  to  drink  beer  with  him,  ignoring  the 
deceased,  who  immediately  took  offence  and  called  the  defendant 
offensive  and  vulgar  names,  and  finally  struck  him  in  the  face 
and  upon  the  nose,  causing  the  blood  to  flow.  There  is  some  con- 
flict in  the  testimony  of  the  witnesses  as  to  what  actually  took 
place  and  was  said  by  both  parties  at  this  stage  of  the  quarrel. 
They  all  agree,  however,  substantially,  that  the  defendant  re- 
ceived from  the  deceased  one  or  more  severe  blows  in  the  face 
with  the  fist  or,  as  some  of  them  say,  with  a  beer  glass  which  was 
held  in  the  hand,  and  that  after  this  occurred  the  defendant  went 
into  a  closet  adjoining  the  barroom,  washed  the  blood  from  his 
face,  and  then  passed  through  the  barroom  out  into  the  street, 
through  the  door.  After  the  lapse  of  a  period  of  time  which  is 
variously  described  by  the  witnesses  as  from  five  to  fifteen  min- 
utes, he  returned,  found  the  deceased  still  in  the  barroom,  and 
pointing  a  pistol  at  him  fired  while  the  deceased  was  attempting- 
to  escape  from  him  behind  the  bar.  The  bullet  entered  the  body 
of  the  deceased  near  the  right  hip,  passed  through  the  pelvis  and 
came  out  in  front,  inflicting  a  wound  from  which  he  died  soon 
after. 

One  of  the  police  officers,  who  had  the  defendant  in  charge 
after  the  shooting,  testified  in  substance  that  the  defendant  con- 
fessed to  him  that  after  the  quarrel  in  the  saloon  and  after  the 
defendant  had  washed  the  blood  from  his  face,  he  went  directly 
to  his  house,  which  was  about  two  blocks  distant,  and  there  pro- 
cured the  revolver  and  then  returned  to  the  saloon  and  fired  the 
fatal  shot  at  the  deceased. 

The  defendant  was  the  principal  witness  in  his  own  behalf. 
He  denied  that  he  made  any  such  admissions  to  the  police,  swore 
that  he  found  the  pistol  in  the  street  in  the  month  of  October 
previous,  and  that  he  carried  it  constantly  from  that  time,  and 


324  SPECIFIC   CRIMES. 

had  it  in  his  pocket  when  the  altercation  took  place  in  the  saloon, 
resulting  in  the  blow  from  the  deceased.  That  upon  entering  the 
saloon  the  second  time  he  took  it  from  his  pocket  intending  only 
to  frighten  the  deceased.  That  one  of  the  bystanders,  having 
seized  him  by  the  wrist,  the  pistol  was  accidentally  discharged  and 
in  that  way  the  wound  was  inflicted  which  produced  the  death  of 
the  deceased,  without  any  intent  to  kill  on  the  part  of  the  de- 
fendant. 

The  case  was  submitted  to  the  jury  upon  the  evidence  under 
a  careful  charge,  and  the  verdict  of  conviction  must  be  taken  as 
conclusively  establishing  the  facts  against  the  defendant's  conten- 
tion. The  defendant's  version  of  the  transaction,  which,  upon  its 
face,  was  extremely  improbable,  was  discredited  and  wholly  re- 
jected by  the  jury,  and  that  given  by  the  witnesses  for  the  People 
has  been  adopted. 

While  this  court  has  the  power  in  a  capital  case  to  review  the 
facts  and  to  grant  a  new  trial  when  satisfied  that  the  accused  has 
not  had  a  fair  trial,  or  when  injustice  has  been  done,  it  must  ob- 
serve the  rules  and  principles  which  apply  to  all  tribunals  exercis- 
ing appellate  jurisdiction.  It  is  the  province  of  the  jury  to 
determine  questions  of  fact,  depending  upon  evidence  in  any 
degree  conflicting,  and  to  declare  by  their  verdict  what  the  truth 
is,  and  when  once  determined,  upon  evidence  which  is  sufficient, 
•even  though  capable  of  diverse  or  opposing  inferences,  this  court 
has  no  more  right  than  the  trial  court  to  substitute  its  own  judg- 
ment in  the  place  of  that  of  the  jury,  or  to  usurp  its  legitimate 
functions. 

The  jury  must  be  satisfied  of  the  guilt  of  the  accused  beyond 
a  reasonable  doubt,  and  where  a  conviction  has  been  had  in  a 
capital  case  upon  conflicting  evidence,  this  court  may  undoubt- 
edly grant  a  new  trial  when  convinced,  upon  a  review  of  the 
whole  evidence,  that  the  conclusion  of  the  jury  was  not  reason- 
ably possible,  or  that  the  proof  does  not  come  up  to  the  required 
standard,  or  for  any  other  reason  injustice  has  been  done.  (Peo- 
ple v.  Cignarale,  110  K  Y.  23.) 

According  to  the  settled  rules  adopted  and  followed  by  this 
court  for  the  review  of  cases  of  this  character,  nothing  appears 
on  the  record  that  would  justify  us  in  interfering  with  the  find- 
ing of  the  jury. 


PEOPLE  V.    KERRIGAN.  325 

The  learned  counsel  for  the  defendant  does  not  rest  the  appeal 
upon  the  ground  that  the  shooting  was  the  result  of  accident. 
That  was  the  theory  of  the  defendant  himself  when  on  the  wit- 
ness stand.  It  would  be  manifestly  impossible  for  any  appellate 
court  to  give  any  weight  to  a  theory  so  improbable  after  it  had 
been  discredited  by  the  verdict  of  the  jury. 

The  argument  now  submitted  for  the  defendant  suggests  that 
the  homicide  was  not  committed  with  the  deliberation  and  pre- 
meditation which  is  an  essential  element  of  the  crime  of  murder 
in  the  first  degree.  It  is  quite  possible  that  if  the  defendant  had 
fired  the  fatal  shot  while  resisting  the  assault  upon  him  by  the 
deceased,  or  at  the  moment  that  he  had  received  the  blow  in  the 
face,  that  the  degree  of  criminal  responsibility  would  be  changed. 
But  the  jury  have  found  that,  whoever  was  the  aggressor  origin- 
ally, the  quarrel  had  ended,  the  parties  had  separated,  that  the 
defendant  had  no  cause  to  apprehend  further  danger,  and  that 
when  he  returned,  after  the  lapse  of  sufficient  time  for  the  pas- 
sions to  cool,  and  without  any  new  provocation,  fired  at  the  de- 
ceased, there  existed  in  his  mind  a  deliberate  and  premeditated 
design  to  effect  his  death.  If  it  be  conceded  that  the  original 
quarrel  was  provoked  by  the  deceased,  and  that  the  defendant 
was  abused  and  assaulted  as  claimed,  still  the  shooting  was  wholly 
unjustifiable.  There  being  no  longer  any  reason  for  the  defend- 
ant to  apprehend  any  bodily  injury,  his  act  in  killing  the  .de- 
ceased in  the  manner  described  by  the  witnesses  for  the  People 
was  murder  within  all  the  cases,  and  it  was  clearly  a  question  of 
fact  for  the  determination  of  the  jury  whether  sufficient  time 
had  elapsed  for  the  excited  passions  of  the  defendant  to  cool. 
(Shorter  v.  People,  2  N.  Y.  193;  People  v.  Sullivan,  7  id.  396; 
People  v.  Kelly,  113  id.  647;  People  v.  Carlton,  115  id.  618.) 

It  may  be  true  that  the  defendant  left  the  saloon,  procured 
the  pistol,  returned  and  fired  the  fatal  shot  while  smarting  and 
angered  by  reason  of  the  insults  and  blows  of  the  deceased,  but 
these  facts  constitute  in  law  no  excuse  or  justification  for  the 
killing.  So  long  as  there  was  time  and  opportunity  for  reason  to 
assume  its  sway  and  the  passions  to  cool  the  law  holds  the  defend- 
ant responsible  for  his  acts.  It  may  be  that  the  language  and 
conduct  of  the  deceased  provoked  the  original  quarrel  in  the 
saloon,  but  after  that  difficulty  had  terminated  the  defendant 


SPECIFIC   CRIMES. 

returned  to  renew  it,  and,  instead  of  avoiding  further  trouble, 
as  was  his  duty,  deliberately  sought  out  the  deceased  and  shot 
him,  as  the  jury  found,  from  motives  of  revenge.  It  is  not  now 
within  the  province  of  the  court  to  disturb  the  verdict  of  the 
jury  on  the  ground  that  the  deceased  was  the  aggressor  in  the 
beginning.  The  courts,  in  the  administration  of  criminal  justice, 
are  bound  by  settled  legal  rules.  If  their  effect  and  operation 
should  be  mitigated  in  a  particular  case  by  reason  of  special  facts 
or  circumstances,  that  power  rests  with  the  executive  department 
of  the  government  and  not  with  the  judicial  tribunals.  There  are 
some  features  of  this  case  that  deserve,  and  doubtless  will  receive, 
careful  consideration  in  that  department.  (People  v.  Fish,  125 
N.  Y.  136.) 

There  are  no  other  questions  disclosed  by  the  record  that  call 
for  further  discussion,  or  that  would  justify  a  new  trial,  and  the 
judgment  of  conviction  must,  therefore,  be  affirmed. 

All  concur. 

Judgment  affirmed. 

Swan  v.  State,  4  Humph.  136;  Riley  v.  State,  9  Humph.  646;  Com.  v. 
Drum,  58  Pa.  St.  9;  People  i\  Bealoba,  17  Cal.  389;  People  v.  Nlchol,  54 
Cal.  211;  People  v.  Williams,  43  Cal.  344;  State  v.  Foster,  61  Mo.  549; 
State  v.  Kring,  64  Mo.  591;  State  v.  McCormack,  21  S.  E.  693;  Carlton 
v.  State,  61  N.  W.  699;  State  v.  Umble,  22  S.  W.  378. 

NOTE. — Statutes  generally  make  such  a  killing,  when  done  with  a 
premeditated  design  "to  effect  the  death  of  the  person  killed,"  murder  in 
the  first  degree. 

Minn.  Stat.  1894,  Sec.  6437;  N.  Y.  Penal  Code,  Sec.  183;  State  v.  Nor- 
wood, 20  S.  E.  712;  People  v.  Sliney,  33  N.  E.  150;  People  v.  Rohl,  33 
N.  E.  933;  People  v.  Rohl,  138  N.  Y.  616. 


(22)  To  kill  another  than  the  one  killed. 

JENNINGS  v.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky,  1891. 
16  S.  W.  348. 

PKYOE,  J.   The  appellant,  Jennings,  was  indicted  in  the  Har- 
lan  Circuit  Court  for  the  murder  of  John  Bailey.    The  indict- 


JENNINGS  V.   COMMONWEALTH.  327 

ment  contained  two  counts, — the  first  a  conspiracy  and  an 
agreement  with  one  Wilson  Howard  to  murder  Bailey,  and  the 
second  an  ordinary  count  for  murder.  On  motion  of  the  accused, 
and  by  the  consent  of  the  Commonwealth,  the  case  was  sent  to 
the  Laurel  Circuit  Court  for  trial,  and  a  verdict  and  judgment 
rendered  finding  the  accused  guilty,  and  fixing  his  punishment  at 
imprisonment  for  life.  After  the  change  of  venue,  and  when  the 
case  was  first  called  for  trial,  on  motion  of  the  attorney  for  the 
State  the  indictment  was  quashed,  and  the  charge  referred  to  the 
grand  jury  of  Laurel  county  under  that  provision  of  the  statute 
providing  that,  if  the  indictment  be  quashed,  *  *  a  new 

indictment  may  be  found  from  time  to  time  by  a  grand  jury  of 
the  county  to  which  the  removal  is  made,  and  prosecuted  *  * 
as  though  the  offence  had  been  committed  in  that  county. 
Gen.  St.  c.  12,  art.  4,  sec.  7.  The  grand  jury  of  Laurel  county 
returned  an  indictment  with  two  counts, — the  first  charging  a 
conspiracy  on  the  part  of  the  accused  with  Howard  to  murder 
Bailey,  C.  B.  Turner,  and  George  Turner;  the  second  count 
being  the  usual  charge  of  murder,  by  shooting  Bailey.  The  de- 
fence denied  the  jurisdiction  of  the  Laurel  court  for  many  rea- 
sons, only  one  of  which  is  necessary  .to  be  considered.  He  had 
not  only  consented  to  a  change  of  venue  to  Laurel  county,  but  on 
his  motion  the  change  was  made,  and  with  it  the  indictment  and 
order  showing  that  fact.  It  is  insisted  by  counsel  that  the  offence 
charged  against  the  accused  by  the  grand  jury  of  Laurel  is  a  dif- 
ferent offence  from  that  embraced  in  the  indictment  found  in 
the  Harlan  Circuit, — the  one  charging  a  conspiracy  with  Howard 
to  kill  and  murder  Bailey,  and  the  other  a  conspiracy  with  How- 
ard to  murder  Bailey  and  the  two  Turners.  Each  indictment, 
however,  contained  a  count  charging  the  accused  with  the  mur- 
der of  Bailey.  It  is  manifest  under  our  constitution  and  laws 
that  the  grand  jury  of  Laurel  county  had  no  power  to  indict  the 
accused  for  the  crime  of  murder  or  manslaughter  committed  by 
him  in  the  county  of  Harlan;  and  it  is  only  by  reason  of  the 
statute — the  indictment  being  found  in  the  proper  jurisdiction — 
that  the  accused  is  given  the  right  to  change  the  venue  in  his 
case,  that  he  may  have  a  fair  and  an  impartial  trial.  John  S. 
Bailey  was  the  person  murdered  by  some  one  in  the  county  of 
Harlan.  The  cause  of  that  killing  alone  was  the  subject  of  in- 


328  SPECIFIC   CRIMES. 

vestigation  by  both  the  grand  jury  of  Ilarlan  and  that  of  Laurel 
county.  One  found  a  conspiracy  with  Howard  to  murder  Bailey, 
and  the  other  a  conspiracy  to  murder  Bailey,  C.  B. 
Turner,  and  George  Turner.  If  on  the  trial  of  the  last  in- 
dictment the  State  had  failed  to  connect  the  conspiracy  with 
the  purpose  to  murder  the  two  Turners,  but  had  established  the 
conspiracy  to  murder  Bailey,  and  that  it  was  carried  into  execu- 
tion, it  will  not  be  argued  that  the  accused  must  go  acquitted 
because  of  a  variance  between  the  charge  contained  in  the  in- 
dictment and  that  made  out  by  the  State.  It  is  the  same  offence, 
— that  of  killing  John  S.  Bailey.  The  accused  was  in  no  wise 
misled  by  this  charge,  or  called  on  to  answer  any  other  offence 
than  that  of  murdering  Bailey;  and  we  have  been  unable  to  see 
why  the  first  indictment  was  set  aside,  and  the  case  referred 
again  to  the  grand  jury.  It  is  true,  the  testimony  connects  the 
accused  with  Howard,  and  a  purpose  to  kill  the  Turners;  but 
this  would  not  have  prevented  a  conviction  upon  an  ordinary 
indictment  for  the  murder  of  Bailey  on  the  facts  before  us.  Ob- 
jection was  made  to  the  testimony  or  statement  of  a  witness 
showing  that  Alex  Bailey  had  been  killed  the  Sunday  preceding 
the  Tuesday  upon  which  Bailey  was  shot.  The  court  told  the 
jury  that  it  was  incompetent  upon  the  question  of  the  guilt  of 
the  accused  for  the  murder  of  Bailey,  and  in  fact  it  was  devel- 
oped by  the  same  testimony,  that  Howard,  who  seems  to  have 
been  the  leading  spirit  in  these  murders,  had  been  tried  and 
acquitted  of  the  offence  of  murdering  Alex  Bailey ;  and  this  evi- 
dence, therefore,  was  more  beneficial  than  prejudicial  to  the 
accused,  because  it  showed  that  his  accomplice  or  co-conspirator 
had  been  acquitted;  and  besides,  the  court  said  to  the  jury  that 
the  witness  had  only  referred  to  the  time  of  the  shooting  of 
Alex  Bailey,  so  as  to  enable  him  to  fix  the  time  or  day  on  which 
John  Bailey  was  killed,  and  they  could  consider  it  in  no  other 
light.  The  indictments  both  contained  plain  counts  charging  the 
accused  with  the  murder  of  the  deceased,  and  on  the  testimony 
there  can  be  but  little  doubt  as  to  his  guilt. 

The  court  properly  refused  to  continue  his  case.  It  had  been 
once  continued  after  its  removal  to  Laurel,  and  we  are  satisfied 
the  accused  had  a  fair  trial.  His  own  testimony  condemns  him. 
It  is  true,  doubtless,  that  the  accused  did  not  know  the  man  that 


JENNINGS  V.   COMMONWEALTH.  329 

was  shot.  He  says  he  was  a  stranger  to  John  S.  Bailey,  and  it 
may  be  that  Howard  was  also,  and  still  Bailey  was  cruelly  mur- 
dered by  them,  and  without  any  apparent  cause.  He  had  left  his 
home,  many  miles  from  the  residence  of  Middleton,  the  county 
judge  of  Harlan,  where  the  shooting  occurred,  and  in  company 
with  Howard  was  passing  through  the  county,  both  armed  with 
needle-guns,  carried  either  for  their  own  protection  or  for  the 
purpose  of  murdering  their  enemies.  They  were  at  Mt.  Pleasant 
on  the  Sunday  that  Alex  Bailey  was  shot,  and  on  the  Tuesday 
following  were  both  at  the  residence  of  the  county  judge,  Mid- 
dleton, for  the  purpose,  as  the  accused  says,  of  surrendering  to 
the  officers  of  the  law,  having  been  charged  with  committing 
other  offences.  They  were,  as  Jennings  says,  on  a  mission  of 
peace,  and  not  in  pursuit  of  blood.  This  unfortunate  man  who 
was  shot  lived  many  miles  distant  from  where  his  brother  was 
killed  on  the  Sunday  before.  He  was  on  his  way  to  his  brother's 
funeral,  or  for  the  purpose  of  bringing  to  punishment  those  who 
had  murdered  him.  He  stopped  at  Judge  Middleton's  for  the 
night,  and  early  in  the  morning,  about  sunrise,  opened  the  door 
for  some  purpose,  and  while  standing  in  the  door  the  report  of 
the  needle  or  Winchester  gun  was  heard,  and  the  deceased  fell, 
the  ball  passing  entirely  through  his  body.  The  firing  was  from 
the  bushes,  about  100  yards  from  the  house  of  Middleton.  Those 
in  the  house — the  two  Turners  being  among  the  number — went 
hastily  to  the  spot  from  which  the  firing  began,  and  there  found 
from  the  tracks  and  other  circumstances  where  two  or  more  per- 
sons had  been  concealed.  They  found  a  small  pouch,  in  which 
was  a  cooked  chicken  and  other  meats,  with  bread,  supplied  by 
these  men  no  doubt  in  a  sufficient  quantity,  to  last  them  while  in 
the  pursuit  of  blood.  The  parties  were  pursued  who  had  been 
concealed  in  these  bushes,  and  without  knowing  who  they  were; 
but  after  a  short  distance  they  found  that  Howard  and  the  accused 
had  passed  but  a  few  minutes  in  advance  of  them,  each  with  his 
gun,  and  were  then  making  rapid  strides  from  the  place  of  the 
murder.  They  were  overtaken,  and  shots  were  fired  by  both  par- 
ties, each  fearing  to  approach  the  other,  as  all  were  armed,  and 
Howard  and  the  accused  with  long-range  guns.  They  were  not 
captured  on  that  day,  but  made  their  escape.  Jennings,  the 
accused,  says  the  shooting  was  done  by  Howard.  That  both  had 


330  SPECIFIC   CRIMES. 

gone  to  Middleton's  for  the  purpose  of  giving  themselves  up  for 
the  murder  of  Alex  Bailey,  and,  finding  a  good  many  persons  at 
Middleton's  house,  they  declined  to  make  themselves  known. 
That  Howard  left  him,  together  with  others,  in  the  woods  for  a 
short  time,  when  he  heard  the  report  of  a  gun,  and  on  Howard's 
return  he  asked  him  if  that  was  his  gun,  and  his  response  was, 
"That  is  none  of  your  business."  So  Jennings,  frpm  his  state- 
ment, was  entirely  innocent  of  any  wrong,  or  that  any  one  had 
been  shot,  until  he  was  overtaken  by  those  at  Middleton's  and 
the  firing  began.  It  is  shown  by  one  or  more  witnesses  for  the 
defence  that  these  two  men  said  they  were  going  to  Judge  Mid- 
dleton's to  surrender,  but  this  entire  proof  is  inconsistent  with 
their  conduct  from  the  time  they  left  their  homes  and  started  in 
pursuit  of  their  victims.  Jennings  had  heard  that  one  of  the 
Turners  had  abused  his  sister,  and  it  is  apparent  that  the  accused, 
when  shot,  was  supposed  to  be  one  of  the  Turners,  or  one  of  those 
against  whom  these  parties  entertained  the  most  deadly  hatred. 
This  unfortunate  man,  Bailey,  having  no  connection  with  these 
deadly  feuds,  while  on  his  way  to  his  brother's  grave,  was  shot 
from  ambush  by  either  Howard  or  Jennings;  and  that  both  are 
equally  guilty  of  the  heinous  crime  there  can  be  no  doubt.  He 
was  murdered  under  the  belief  that  he  was  one  of  the  Turners, 
two  of  them  being  at  Middleton's;  and,  while  the  punishment  is 
severe,  it  is  merited  by  reason  of  the  gravity  of  the  offence.  The 
instructions  were  properly  given,  and  contained  the  law  of  the 
case ;  and  from  the  facts  before  us  an  error  substantial  in  its  char- 
acter would  have  to  appear  in  order  to  convince  this  court  that 
the  accused  had  been  prejudiced  by  the  finding  of  the  jury  or  the 
judgment  of  the  trial  court. 

The  judgment  below  is  affirmed. 

Wareham  v.  State,  25  Ohio  601;  State  v.  Oilman,  69  Me.  163;  Richards 
v.  State,  30  S.  W.  805;  People  v.  Gordon,  100  Mich.  518;  State  v.  Ren- 
frow,  20  S.  W.  299,  111  Mo.  589;  Angell  c.  State,  36  Tex.  542;  Butler  v. 
People,  125  111.  641;  State  v.  Smith,  2  Strobhart  77;  State  v.  Levelle,  13 
S.  E.  319;  State  v.  Payton,  90  Mo.  220;  Bish.  I.,  Sec.  328;  Clark,  p.  159; 
Wharton,  Sec.  317;  Hawley  &  McGregor,  p.  35. 

NOTE. — Statutes  generally  make  such  a  killing,  when  done  with  a 
premeditated  design  "to  effect  the  death  of  the  person  killed,"  murder 
In  the  first  degree. 

Minn.  Stat  1894,  Sec.  6437;  N.  Y.  Penal  Code,  Sec.  183. 


STATE  V.  WALKER.  331 

NOTE. — Murder  in  the  second  degree.  Most  statutes  make  the  killing 
murder  in  the  second  degree  when  committed  with  a  design  to  effect 
the  death  of  the  person  killed,  or  another,  but  without  deliberation  and 
premeditation. 

State  v.  Young,  40  Pac.  659;  McQueen  v.  State,  15  So.  824;  Ezell  v. 
State,  15  So.  810;  State  v.  Crawford,  22  S.  W.  371;  Knowles  v.  State,  20 
S.  W.  829;  People  v.  Hite,  33  Pac.  254;  Minn.  Stat.  1894,  Sec.  6438. 

NOTE.— By  some  statutes  it  is  murder  in  the  second  degree  to  kill  a 
person  in  a  duel. 

By  the  Minnesota  statutes  it  is  murder  in  the  second  degree,  no  mat- 
ter whether  the  killing  takes  place  within  or  without  the  State,  if  the 
duel  is  planned  within  the  State;  and  the  seconds  or  assistants  are 
made  equally  guilty  with  the  principals. 

Minn.  Stat.  1894,  Sec.  6439;  N.  Y.  Penal  Code,  Sec.  185. 


(32)  To  do  great  bodily  harm. 

STATE  v.  WALKER. 

Supreme  Court  of  Louisiana,  1885. 
37  La.  Ann.  560. 

THE  opinion  of  the  court  was  delivered  by 

BERMUDEZ,  C.  J.  The  defendant  appeals  from  a  sentence  of 
death  passed  on  him  on  a  prosecution  and  conviction  of  murder. 

The  record  contains  a  bill  of  exception,  a  sworn  motion  for  a 
new  trial  and  another  in  arrest  of  judgment. 

The  bill  recites  as  follows : 

"The  jury  had  retired  for  deliberation  and  returned  into  open 
court  for  instruction,  and  the  foreman  of  the  jury,  Mr.  W.  E. 
Maples,  stated  to  the  court  that  one  of  the  jury  was  not  content, 
on  the  ground  that,  though  satisfied  that  accused  struck  the  blow 
which  caused  death,  he  was  not  satisfied  that  accused  ^ntended  to  kill ; 
whereupon,  his  honor,  Judge  A.  W.  O.  Hicks,  presiding,  briefly 
and  distinctly  charged  the  jury  that  'when  a  blow  is  struck  and 
death  ensues,  it  is  murder,  and  the  intention  has  nothing  to  do 
with  it;'  and  whereupon  the  foreman  instantly  delivered  into 
court  an  unqualified  verdict  of  'guilty  of  murder,  as  charged.' 

"To  which  instruction    or   special  charge  defendant,  by  his 


332  SPECIFIC   CRIMES. 

counsel,  instantly  objected  as  contrary  to  the  law  or  laws  of 
Louisiana  governing  the  case,  and  as  depriving  the  jury  of  their 
capacity  and  jurisdiction  to  discriminate  between  excusable  and 
felonious  homicide,  which  points  of  objection  were  overruled  by 
the  court." 

The  district  judge  did  not  concur  in  this  statement.  He  added: 

"The  above  statement  of  the  inquiry  made  by  the  juror  and 
the  instructions  given  by  the  court  are  not  correct  The  juror 
stated  to  the  court  that  all  the  jury  save  one  was  ready  to  return 
a  verdict  of  guilty  of  murder.  That  one  juror  was  satisfied  that 
defendant  killed  Gates,  and  that  the  killing  was  malicious,  but 
was  not  satisfied  that  defendant  intended  to  kill  him  and  desired 
instructions  on  that  point.  The  court  did  not  tell  the  jury  where 
a  blow  is  struck  and  death  ensues  it  is  murder,  and  the  intention 
has  nothing  to  do  with  it. 

"The  court  did  charge  the  jury  in  answer  to  the  juror,  that  the 
intent  to  kill  was  not  necessary  in  the  case,  had  nothing  to  do 
with  the  case. 

"That  the  defendant  was  presumed  to  have  intended  the 
natural  and  probable  consequences  of  his  act.  1  Bish.  sec.  735; 
12  Ann.  628.  If  a  mortal  blow  is  unlawful  and  malicious,  and 
death  ensues,  the  perpetrator  is  guilty  of  murder;  whether  he  in- 
tended to  kill  or  not,  he  is  responsible  for  the  effects  of  such 
willful  and  malicious  blow,  although  he  did  not  intend  to  kill. 
2  Bish.  Cr.  L.  sees.  689,  679." 

The  district  judge  simply  meant,  and  said,  that  intent  need  not 
be  proved  as  a  fact ;  that  it  might  be  presumed  or  inferred. 

Those  charges  are  sustained  by  the  authorities  to  which  refer- 
ence is  made,  and  by  others  besides.  "VVharton  C.  L.  sees.  106, 
107,  and  notes  112;  note  to  sees.  107,  313,  315;  30  Mich.  16, 
Weller  v.  People. 

The  motion  for  a  new  trial  on  the  ground  of  misconduct  of 
the  jury,  is  unaccompanied  by  any  bill  of  exception  with  annexed 
evidence. 

That,  in  arrest  of  judgment,  is  based  on  the  ground  that  the 
judgment  overruling  the  motion  for  a  new  trial  is  contrary  to  law 
and  evidence. 

It  is  sufficient  to  say  that  no  showing  is  made  justifying  a  re- 
view of  the  rulings  of  the  district  judge  on  those  motions. 

Judgment  affirmed. 


STATE  V.   MURRAY.  333 

McKee  v.  State,  82  Ala.  32;  Clem  v.  State,  31  Ind.  480;  Wellar  v.  Peo- 
ple, 30  Mich.  16;  Brooks  v.  Com.,  61  Pa.  St.  352;  Souther  v.  Com.,  7 
Gratt.  673;  Com.  v.  Devlin,  126  Mass.  253;  People  v.  Sanchez,  24  Cal. 
17;  State  v.  Moore,  25  la.  128;  State  v.  Smith,  2  Strobhart  77;  State  v. 
Underwood,  57  Mo.  40;  Ex  parte  Nettles,  58  Ala.  268;  Chirk,  p.  160; 
Wharton,  Sec.  315. 

NOTE.— Many  statutes  make  killings  of  this  nature  murder  in  the  third 
degree. 

Minn.  Stat.  1894,  Sec.  6440;  State  v.  Smith,  56  Minn.  78. 


(42)  To  commit  a  felony. 

STATE  v.  MURRAY. 

Supreme  Court  of  Missouri,  1895. 
29  S.  W.  590. 

BURGESS,  J.  At  the  January  Term,  1894,  of  the  St.  Louis 
County  Circuit  Court,  the  defendant,  with  his  brother,  James 
Murray,  was  indicted  for  murder  in  the  first  degree  for  the  kill- 
ing of  Edgar  Fitzwilliams.  Counsel  was  assigned  defendant,  and 
at  the  May  Term  following,  upon  his  application,  a  change  of 
venue  was  awarded  him  to  the  Circuit  Court  of  Gasconade 
county,  where  at  the  September  Term,  1894,  of  that  court,  he 
was  put  upon  his  trial,  and  convicted  of  murder  in  the  first 
degree,  and  now  prosecutes  his  appeal  to  this  court,  in  which 
he  is  not  represented  by  counsel.  The  facts,  as  disclosed  by  the 
record,  are  as  follows:  On  the  night  of  December  23,  1893,  de- 
fendant, his  brother  James,  and  two  others  met  and  arranged  to 
rob  the  conductor  of  a  car  on  Page  avenue,  in  St.  Louis  county. 
When  the  car  passed  back  on  one  of  its  return  trips  from  the 
city  of  St.  Louis,  and  not  far  from  the  end  of  the  car  track, 
Edgar  Fitzwilliams,  who  was  the  conductor  in  charge,  and 
Lizzie  Schueble,  a  passenger,  were  its  only  occupants.  The  four 
negroes  boarded  the  car,  James  Murray  and  one  other  getting 
on  the  front  or  west  end,  the  defendant  and  the  other  negro  get- 
ting on  the  rear  end.  By  prearrangement  between  them,  when 
the  conductor  was  assaulted,  one  of  the  party  who  was  in  the  rear 
end  of  the  car  was  to  pull  the  trolley  line,  and  thereby  extinguish 


334  SPECIFIC   CRIMES. 

all  the  lights.  When  the  conductor,  Fitzwilliams,  went  in  the  car 
to  collect  the  fares,  one  of  the  three  negroes  who  were  at  that 
time  inside  the  car  shot  and  killed  him,  and  then  they  robbed 
him  of  what  money  he  had  upon  his  person,  and  his  watch,  and 
then  made  their  escape.  Miss  Schueble,  who  was  on  the  car  at 
the  time,  witnessed  the  killing  and  robbery,  having,  as  soon  as  it 
occurred,  left  the  car,  and  given  the  alarm  to  some  persons  in 
the  neighborhood,  and  when  the  car  was  reached  by  such  persons, 
within  a  very  few  minutes  thereafter,  Fitzwilliams  was  found  in 
the  car  dead.  The  murder  was  committed  in  St.  Louis  county. 
The  defendant  made  one  written  statement,  and  three  other  dif- 
ferent statements,  to  as  many  different  persons,  in  which  he  ad- 
mitted his  presence  at  the  time  of  the  killing  and  robbery;  that 
he  boarded  the  car  knowing  the  arrangement  to  rob  the  conduc- 
tor; that  he  was  present  to  perform  his  part;  but  denied  further 
than  this  his  participation  in  the  crime.  He  was  sworn  as  a  witness' 
in  his  own  behalf,  and  testified  upon  his  trial  to  substantially 
the  same  facts  in  regard  to  his  connection  with  the  murder  that 
he  had  stated  on  the  other  occasions.  After  defendant  and  his 
brother  James  had  been  arrested,  and  were  in  custody  of  the 
officers  of  the  law  in  the  city  of  St.  Louis,  Miss  Schueble  went 
to  see  them,  and  recognized  James  Murray  as  one  of  the  negroes 
who  robbed  and  killed  Fitzwilliams,  and  was  of  the  opinion  that 
defendant  was  another  of  them,  but  was  not  positive;  but  when 
taken  into  her  presence  the  defendant  stated,  in  the  presence  and 
hearing  of  the  officer  then  having  him  in  custody,  that  she  was 
the  lady  that  was  on  the  car  at  the  time.  After  defendant's  con- 
viction, he  in  due  time  filed  his  motion  for  a  new  trial*,  which, 
after  due  consideration  by  the  court,  was  overruled,  but  he  saved 
no  exceptions  to  the  court's  action  in  this  regard.  There  is,  then, 
nothing  before  this  court  to  be  passed  upon  except  the  record 
proper,  as  he  must,  by  his  failure  to  except  to  the  ruling  of  the 
court  and  to  save  his  exceptions,  be  deemed  to  have  waived  any 
possible  objections  thereto  and  to  have  acquiesced  therein.  State 
v.  Gilmore,  110  Mo.  1, 19  S.  W.  218;  State  v.  Hitchcock,  86  Mo. 
231;  State  v.  McDonald,  85  Mo.  539;  State  v.  Pints,  64  Mo.  317. 
After  careful  examination  of  the  indictment,  we  are  satisfied 
that  it  is  sufficient,  and  in  form  often  met  with  the  approval  of 
this  court.  It  contains  every  averment  necessary  to  constitute 


8NELLING  V.    THE   STATE.  335 

murder  in  the  first  degree,  the  offence  for  which  defendant  was 
convicted.  State  v.  Blan,  69  Mo.  317;  State  v.  Burns,  99  Mo. 
472,  12  S.  W.  801;  State  v.  Sundheimer,  93  Mo.  316,  6  S.  W. 
52;  State  v.  Turlington,  102  Mo.  647,  15  S.  W.  141;  State  v. 
Stacy,  103  Mo.  12,  15  S.  W.  147;  Whart.  Horn.  (1st  Ed.)  269; 
Whart.  Prec.  Ind.  (3d  Ed.)  114.  The  facts,  as  disclosed  by  the 
record,  show  a  preconcerted  plan  by  defendant  and  his  co-con- 
spirators to  rob  the  conductor  of  the  car,  and  that,  in  doing  so, 
they  killed  and  murdered  him  for  the  small  amount  of  money 
which  he  then  had  in  his  possession,  and  defendant's  connection 
therewith  and  participation  therein.  His  guilt  was  established 
beyond  any  doubt,  and  it  is  impossible  to  see  how  the  jury  could 
have  arrived  at  any  other  conclusion  than  that  of  his  guilt.  He 
seems  to  have  had  a  fair  and  impartial  trial,  and  the  judgment 
must  be  affirmed. 
All  concur. 

People  v.  Wilson,  145  N.  Y.  628;  Hoffman  v.  State,  59  N.  W.  588; 
Reg.v.  Seme,  16  Cox  C.  C.  311;  People  v.  Olsen,  80  Gal.  122;  State  v. 
Barrett,  40  Minn.  77;  Oliver  v.  State,  17  Ala.  587;  People  v.  Braloba,  17 
Cal.  389;  People  v.  Vasquez,  49  Cal.  560;  Moynihan  v.  State,  70  Ind.  126; 
Com.  v.  Pemberton,  118  Mass.  36;  State  v.  Smith,  32  Me.  369;  Buel  v. 
State,  78  N.  Y.  492;  Dolan  v.  People,  64  N.  Y.  485;  Ruloff  v.  People,  45 
N.  Y.  213;  People  v.  Johnson,  110  N.  Y.  134;  People  v.  Greenwall,  115 
N.  Y.  520;  Minn.  Stat.  1894,  Sec.  6440;  Clark,  p.  160. 


(c1)  Resulting  from  the  resistance  of  lawful  arrest. 

SNELLING  v.  THE  STATE. 

Supreme  Court  of  Georgia,  1891. 
87  Ga.  50;  13  S.  E.  154. 

CLARKE,  J.  At  a  Special  Term  of  Randolph  Superior  Court 
held  in  July,  1890,  Sam.  Snelling,  the  plaintiff  in  error,  was 
convicted  of  the  murder  of  Ed.  Skipper.  He  moved  for  a  new 
trial,  setting  forth  as  the  only  grounds  of  such  motion  that  the 
verdict  was  contrary  to  the  evidence  and  contrary  to  the  law. 
The  motion  was  denied,  and  its  denial  is  the  error  here  assigned. 


336  SPECIFIC   CRIMES. 

The  evidence  introduced  by  the  prosecution  was  substantially 
as  follows:  In  1884  a  bench-warrant  was  issued  from  the 
Superior  Court  of  Randolph  county  for  the  arrest  of  said  Snel- 
ling  for  murder,  he  having  been  indicted  in  that  court  for  such 
offence.  On  May  17th,  1887,  the  sheriff  placed  this  warrant  in 
the  hands  of  the  deceased  for  the  purpose  of  execution.  He  is 
mentioned  in  the  evidence  as  "a  bailiff  of  the  county,"  "officer  of 
the  justice  court  here — arresting  officer,"  and  jailer  of  the 
county.  Shortly  after  nine  o'clock  in  the  morning  of  that  day, 
Skipper  left  Cuthbert  to  make  the  arrest,  being  accompanied  by 
Joe  Standley  and  N.  A.  Burge.  Their  interest  in  the  matter  was 
to  secure  a  reward  which  had  been  offered  for  the  apprehension 
of  Snelling.  These  men  were  all  armed,  Skipper  and  Burge  each 
having  a  double-barrel  shot-gun,  and  Standley  a  Winchester 
rifle.  Skipper  took  one  route  for  the  house  where  Snelling  was 
supposed  to  be,  and  Standley  and  Burge  another.  The  three  met 
at  the  house.  This  was  simply  a  single  room  with  a  front  and  rear 
door,  and  a  window  in  one  end.  The  house  was  "pretty  high" 
above  the  ground,  and  steps  led  up  to  the  front  door  which  opened 
toward  the  inside.  Skipper  took  position  at  the  front  door,  Burge 
at  the  rear  door,  and  Standley  at  a  corner  which  commanded  a 
view  both  of  the  front  door  and  window.  Skipper  three  times 
ordered  that  the  door  be  opened.  The  only  response  was  from  a 
little  girl  who  said  there  was  "nobody  in  there."  "He  then 
caught  hold  of  the  door-knob,  turned  it  and  pushed,  and  the 
door  flew  open."  After  the  door  opened  he  entered  the  house  and 
said  to  Snelling,  "Get  up  and  consider  yourself  under  arrest." 
When  these  words  were  spoken,  Snelling  fired  a  pistol  at  Skip- 
per, the  ball  of  which  entered  his  stomach.  Standley  then  ran  to 
the  door  and  sprang  into  the  house.  As  he  did  so,  the  pistol  was 
fired  a  second  time,  and  Snelling  and  Skipper  then  had  hold  of 
each  other.  The  latter's  gun  was  on  the  floor  with  the  barrel 
pointing  to  the  door.  Skipper  cried,  "Help,  he  has  killed  me." 
Standley  made  an  ineffectual  effort  to  use  his  gun,  when  Snell- 
ing fired  at  him,  shooting  him  in  the  shoulder.  This  disabled 
Standley  so  that  his  gun  fell  to  the  floor.  It  fired  as  it  fell.  Snell- 
ing then  shot  at  Standley  a  second  time,  inflicting  another 
wound,  and  then  again,  the  last  time  missing  his  aim.  Standley 
was  still  unable  to  discharge  his  gun,  though  "he  cocked  it  once 


SNELLING  V.   THE   STATE.  337 

or  twice  and  snapped  it."  Snelling  was  still  "snapping"  his  pistol 
at  Standley.  He  turned  to  the  door  and  let  himself  down.  Here 
Burge  came  up,  and  some  dozen  words  were  exchanged  be- 
tween him  and  Standley.  About  this  time  Skipper  fell  backwards 
out  of  the  door.  At  the  same  time  Snelling  leaped  through  the 
door  and  fled.  Skipper  neither  spoke  nor  moved  after  he  fell. 
He  expired  in  five  minutes.  Upon  examination  it  appeared  that 
his  gun  had  not  been  fired.  When  the  shooting  occurred,  the 
only  person  in  the  house  besides  the  three  men  was  a  negro  girl 
about  nine  or  ten  years  old.  No  evidence  was  tendered  on  the 
part  of  the  defendant.  He  made  a  statement  which  was,  in  sub- 
stance, that  on  the  occasion  in  question  he  was  asleep  in  his  wife's 
house,  that  the  noise  of  some  one  breaking  into  the  house  awoke 
him,  that  the  first  thing  he  saw  was  a  man  in  the  house  present- 
ing a  gun  at  him,  that  he  thereupon  shot  at  the  man,  that  the 
man  again  presented  the  gun  and  defendant  again  shot,  that 
about  this  time  another  man  entered  with  a  gun,  that  neither  of 
the  men  said  anything  to  him,  and  that  what  he  did  was  for  his 
own  protection.  He  mentioned  further  that  he  did  not  know 
how  many  shots  he  fired,  and  that  he  escaped  after  he  had  fired  the 
last  one.  The  State  having  introduced  a  witness  who  testified 
that  defendant  had  told  him  that  Skipper  had  shot  him,  defend- 
ant, with  a  double-barrel  shot-gun  before  he  fired  at  all,  defend- 
ant made  a  supplemental  statement  in  which  he  said  that  he  was 
shot  in  the  difficulty,  and  with  buckshot,  and  pointed  out  to  the 
jury  the  place  where  he  was  struck. 

Under  the  evidence  the  most  favorable  view  of  the  case  for 
the  defendant  is,  that  he  killed  a  private  citizen  who  was  attempt- 
ing to  arrest  him  for  the  commission  of  a  felony.  This  view  may 
well  be  taken,  for  the  officer  did  not  disclose  his  character  as  such, 
and  did  not  exhibit  or  mention  the  warrant  which  he  had.  Sup- 
posing the  facts  to  be  thus,  is  there  anything  to  relieve  the  de- 
fendant of  the  guilt  of  murder?  We  think  not.  A  private  per- 
son had  a  legal  right  to  make  the  arrest.  "If  the  offence  is  a 
felony,  and  the  offender  is  escaping,  or  attempting  to  escape,  a 
private  person  may  arrest  him  upon  reasonable  and  probable 
grounds  of  suspicion."  Code,  Sec.  4724.  This  defendant's  of- 
fence was  a  felony  for  which  he  had  been  indicted  three  years 
before.  ISTor  could  he  shield  himself  from  the  effect  of  the  situa- 

22 


338  SPECIFIC   CRIMES. 

tion  by  a  claim  that  he  acted  in  ignorance  of  the  purpose  of  the 
person  attempting  the  arrest.  This  purpose  was  distinctly  an- 
nounced by  the  first  and  only  words  which  were  addressed  to  him 
by  the  deceased.  This  evidence  cannot  be  overcome  and  needs 
no  support.  If  it  needed  aid,  it  could  well  receive  it  from  the 
circumstances  of  the  defendant  when  the  killing  occurred.  He 
was  in  the  county  where  the  felony  had  been  perpetrated,  and 
there  as  a  fugitive  from  justice.  He  must  have  apprehended  the 
very  thing  which  occurred,  and  might  reasonably  have  supposed 
the  attack  on  his  home  to  have  been  made  with  that  design.  It 
is  easy  to  believe  that  he  did  at  once  realize  the  intention  of  the 
arresting  party.  The  response  of  the  little  girl  to  the  demand  for 
admission  to  the  house  is  significant  in  this  connection.  The 
state  of  preparation  in  which  he  was  found  and  the  promptness 
and  vigor  with  which  he  availed  himself  of  such  preparation 
mean  much  in  explaining  the  state  of  his  mind.  If,  then,  Skip- 
per as  a  private  citizen  had  authority  to  apprehend  the  defend- 
ant, and  the  defendant  knew  that  Skipper's  purpose  was  to  arrest 
him,  it  was,  of  course,  his  duty  to  submit.  The  law  would  not 
tolerate  in  him  any  form  or  degree  of  resistance,  and  most  cer- 
tainly we  cannot  discover  the  slightest  excuse  for  the  sanguinary 
and  fatal  resistance  to  which  he  did  resort. 

The  following  decisions  of  this  court  were  cited  by  counsel  for 
defendant,  to  wit:  O'Connor  v.  The  State,  64  Ga.  125;  Phillips 
v.  The  State,  66  Ga.  755;  Davis  v.  The  State,  79  Ga.  767;  and 
Groom  v.  The  State,  85  Ga.  718.  We  have  examined  in  full 
each  one  of  these  cases,  and  fail  to  find  any  adjudication  at  vari- 
ance with  this  opinion.  Indeed,  the  one  last  named  states  more 
strongly  and  clearly  than  the  writer  can  the  doctrines  upon  which 
we  rest  the  present  decision. 

Judgment  affirmed. 

State  v.  Spaulding,  34  Minn.  361;  Vroom  v.  State,  85  Ga.  718;  Clark, 
p.  161;  Wharton,  Sec.  413. 
NOTE. — Definition  of  probable  cause. 
People  v.  Kilvington,  104  Cal.  8«;  People  v.  Carlton,  115  N.  Y.  618. 


STATE   V.    CURRY. 


(21)  Manslaughter. 

Manslaughter  is  the  unlawful  killing  of  a  human  being 
without  malice  aforethought.  The  act  may  be  voluntary 
or  involuntary. 

(a1)  Voluntary. 

Voluntary  manslaughter  is  where  death  occurs  by  reason 
of  an  act  done  designedly,  in  passion  roused  by  provoca- 
tion or  in  resisting  an  unlawful  arrest. 

(I2)  In  passion  roused  by  provocation. 

STATE  v.  CURRY. 

Supreme  Court  of  North  Carolina,  1854. 
1  Jones  Law,  280. 

THIS  was  an  indictment  for  murder,  tried  before  his  Honor,. 
Judge  Caldwell,  at  the  Spring  Term,  1854,  of  Northamptom 
Superior  Court. 

The  prisoner  and  the  deceased,  both  free  persons  of  color;, 
started  from  Gaston  to  ascend  the  Roanoke  River  in  a  loaded' 
boat,  assisted  by  a  slave,  the  deceased  being  the  manager.  After 
rowing  up  the  river  three-quarters  of  a  mile,  they  were  heard 
quarreling  by  a  witness  then  about  one  hundred  and  fifty  or  two 
hundred  yards  behind  them  in  another  boat.  When  the  witness 
first  heard  them  quarreling,  the  prisoner  was  standing  in  the 
bow,  and  the  deceased  in  the  stern.  The  witness  stated  that  their 
boat  was  gaining  on  the  boat  in  which  the  prisoner  and  deceased 
were;  the  latter  was  somewhat  drifting  with  the  current.  During 
the  quarrel,  and  when  within  about  a  hundred  yards  of  the  other 
boat,  he  saw  the  prisoner  striking  at  some  one  in  the  bottom  of 
the  boat,  at  which  time  it  was  drifting,  and  continued  to  drift 
toward  them;  that  the  deceased  so  being  stricken  was  near  the 


340  SPECIFIC   CRIMES. 

stern,  a  little  in  advance  of  the  point  where  he  first  saw  him; 
that  the  prisoner  continued  striking  until  the  boats  were  so  near 
together  that  he  could  discover  that  it  was  the  person  of  the  de- 
ceased on  whom  the  blows  were  being  inflicted ;  that  he  was  lying 
on  his  back  with  his  legs  across  a  pushing  pole,  and  that  the  pri- 
soner continued  the  blows,  giving  the  deceased  five  or  six  after 
he  ascertained  who  it  was. 

The  witness  also  stated  that  the  weapon  used  by  the  prisoner, 
while  beating  the  deceased,  was  what  is  called  a  boat-slide;  that 
it  was  about  eight  feet  long  and  three  and  a  half  inches  wide, 
and  two  and  a  half  inches  thick,  and  had  iron  on  each  side  near 
the  ends;  that  he  went  into  the  boat  where  the  deceased  was 
lying,  and  washed  the  blood  off  his  head  and  face,  and  said  to 
the  prisoner,  "You  have  killed  Harris,"  to  which  he  replied, 
"Damn  him,  he  is  only  drunk."  The  witness  then  asked  the 
prisoner  why  he  had  done  so,  and  he  replied  the  deceased  had 
stricken  him  first.  The  witness  did  not  see  the  parties  when  they 
first  engaged.  The  same  witness  testified,  as  did  three  others 
who  saw  the  prisoner  immediately  after  the  occurrence,  that 
there  was  a  bruise  or  puncture  on  the  cheek  of  the  prisoner,  and 
that  is  was  bleeding. 

This  witness  also  testified  that  the  pushing  pole,  over  which 
the  legs  of  the  deceased  were  hanging,  was  some  fifteen  feet  long, 
liad  iron  on  its  end,  and  was  broken  off  at  the  end  at  which  the 
iron  was.  The  jailer  testified  that  the  prisoner  was  committed  to 
jail  a  short  time  after  the  occurrence,  and  that  he  had  a  bruise 
•or  cut  over  one  of  his  eyes,  and  said  that  it  was  caused  by  blows 
given  him  by  the  deceased.  The  deceased  died  about  twenty- 
four  hours  after  the  occurrence.  Several  witnesses  who  examined 
the  deceased,  before  and  after  his  death,  stated  that  his  arms 
were  bruised,  and  one  of  them  broken;  that  his  skull  was  badly 
fractured — that  there  was  blood  on  the  brain,  after  the  bones  of 
the  skull  were  removed;  and  that  his  head  was  bruised  and  bloody 
all  over. 

The  counsel  for  the  prisoner  insisted  that  the  testimony  only 
made  out  a  case  of  manslaughter,  for  that  there  was  evidence 
that  the  deceased  had  stricken  the  prisoner  two  blows  in  the  first 
instance. 

His  honor  charged  the  jury  that  the  weapon  used  by  the  pri- 


STATE  V.   CJFRRY.  341 

soner  was  a  deadly  one,  and  that  even  supposing  that  the  prisoner 
hud  been  stricken  by  the  deceased,  as  insisted  by  his  counsel, 
still,  if  they  believed  from  the  testimony  that  the  prisoner 
knocked  down  the  deceased  with  the  boat-slide  in  the  rencontre, 
and,  when  the  deceased  was  so  down,  continued  to  beat  him  from 
the  time  when  first  seen  striking,  up  to  the  time  when  the  two 
boats  came  together;  that  with  the  deadly  weapon  described,  he 
bruised  and  wounded  him  to  the  extent  deposed  to  by  those  who 
examined  the  body  of  the  deceased,  that  it  would  be  a  case  where 
the  violence  inflicted  was  out  of  all  proportion  to  the  provocation, 
and  would  be  murder  on  the  part  of  the  prisoner. 

The  counsel  for  the  prisoner  then  moved  the  court  to  charge 
the  jury  that  if  the  prisoner  and  the  deceased  entered  into  the 
contest  upon  equal  terms,  and,  during  the  rencontre,  the  prisoner 
killed  the  deceased,  it  would  be  but  manslaughter  on  the  part  of 
the  prisoner. 

The  court  thereupon  told  the  jury,  that  the  general  principle 
laid  down  by  the  counsel,  all  malice  apart,  was  correct;  but  it 
did  not  apply  to  this  case ;  for  even  supposing  the  prisoner  to  have 
entered  into  the  conflict  upon  equal  terms,  yet,  if  he  knocked 
down  the  deceased,  and  continued  to  beat  him  with  the  weapon 
described,  and  in  the  manner  and  to  the  extent  testified  to  by  the 
witnesses,  it  would  be  murder  on  the  part  of  the  prisoner. 

Under  these  instructions,  the  jury,  by  their  verdict,  found  the 
prisoner  guilty. 

Rule  for  a  venire  de  novo ;  for  error  in  the  instructions  given 
the  jury.  Rule  discharged,  and  appeal  to  the  Supreme  Court. 

PEARSON,  J.  If  two  men  fight  upon  a  sudden  quarrel,  and  one 
be  killed,  it  is  but  manslaughter,  although  the  death  is  caused 
by  the  use  of  a  deadly  weapon. 

But  if,  in  such  case,  the  killing  be  committed  in  an  unusual 
manner,  showing  evidently  that  it  is  the  effect  of  deliberate 
wickedness — malice,  not  passion,  it  is  murder,  although  there  be 
a  high  provocation. 

It  is  well  settled  that  this  is  the  general  rule  and  the  exception. 
His  honor  was  of  opinion  that  the  case  under  consideration  fell 
within  the  exception,  and  the  prisoner  was  guilty  of  murder. 
There  is  error. 


342  SPECIFIC   CRIMES. 

From  the  manner  in  which  the  case  was  put  to  the  jury,  the 
prisoner  is  entitled  to  the  benefit  of  every  inference  that  the  jury 
were  at  liberty  to  draw  in  his  favor;  for,  his  honor  took  the  case 
from  the  jury,  and  instructed  them  that  in  the  most  favorable 
point  of  view,  the  prisoner  was,  according  to  the  evidence,  guilty 
of  murder. 

The  facts,  then,  are  to  be  taken  to  present  this  case:  Two  free 
negroes  start  for  the  purpose  of  carrying  a  boat  up  the  river;  in  a 
short  time  they  get  into  a  quarrel :  one  seizes  a  pole  fifteen  feet 
long,  the  other  a  slide,  or  a  piece  of  plank  eight  feet  long;  the 
deceased  gives  the  first  blow,  by  a  stroke  or  push  with  the  pole 
(which  has  an  iron  spike  at  the  end),  making  a  bruise  or  punc- 
ture on  the  cheek  of  the  prisoner,  and  a  bruise  or  cut  over  one  of 
his  eyes;  the  pole  is  broken  by  being  struck  against  the  side  or 
bottom  of  the  boat;  the  prisoner  gives  the  deceased  a  blow  with 
the  slide  on  his  head,  by  which  he  is  knocked  down  upon  the 
bottom  of  the  boat;  after  he  is  down,  the  prisoner  continues  to 
strike  with  the  slide  many  times;  how  many  times  he  struck  cannot 
be  determined;  the  deceased  died  twenty-four  hours  afterward. 
A  witness  says  he  continued  to  strike  from  the  time  the  boats 
were  one  hundred  and  fifty  yards  apart,  until  they  got  near 
enough  to  see  that  he  was  striking  at  deceased  in  the  bottom  of 
the  boat — one  boat  floating  down  the  stream,  and  the  other  pass- 
ing up  to  meet  it.  An  examination  of  the  body  shows  that  "the 
arms  were  bruised,  and  one  of  them  broken.  The  skull  was 
fractured,  and  there  was  blood  over  the  brain.  The  head  was 
bruised  and  bloody  all  over." 

Suppose  the  arm  was  broken  by  one  blow,  the  skull  by  another 
•which  knocked  the  deceased  down  upon  the  .bottom  of  the  boat; 
this  natural  evidence,  furnished  by  the  state  of  the  body,  about 
which  there  can  be  no  mistake,  for  it  is  not  under  the  influence 
of  the  imagination,  shows  that  there  could  not  have  been  many 
other  blows  inflicted,  and  the  evidence  can  only  be  reconciled  by 
supposing  that  after  the  deceased  was  down  in  the  bottom  of  the 
boat,  not  more  than  one  out  of  ten  of  the  blows  made  with  a  plank 
«ight  feet  long,  could  take  effect  upon  the  body  of  the  deceased. 
So,  the  force  of  most,  if  not  all  the  blows,  stricken  after  the  de- 
ceased was  down,  must  have  been  spent  upon  the  sides  or  bottom 
of  the  boat. 


STATE   V.    CURRY.  343 

We  must  here  observe,  that  the  fact  the  prisoner  continued  to 
strike  with  the  slide,  after  the  deceased  was  lying  in  the  bottom 
of  the  boat,  and  did  not  punch  or  job  with  the  end,  which  was 
the  only  way  in  which  the  slide  could  then  have  been  used  with 
deadly  effect,  tended  strongly  to  show  that  he  was  acting  under 
the  blind  fury  of  passion,  caused  not  merely  by  the  provocation 
of  a  blow,  but  by  the  excitement  of  a  fight. 

Assuming  these  to  be  the  facts,  the  question  is,  does  the  case 
fall  within  any  exception,  so  as  to  be  murder,  and  not  man- 
slaughter? Take  a  general  view  of  the  subject.  If  two  men  upon 
a  sudden  quarrel,  get  into  a  fist  fight,  and  one,  without  giving 
notice,  draws  a  knife,  and  stabs  the  other  to  the  heart,  or  blows 
his  brains  out  with  a  pistol,  it  is  manslaughter,  because,  out  of 
regard  to  the  frailty  of  our  nature,  the  killing  is  supposed  to  be 
the  effect  of  passion,  brought  on  by  the  high  excitement  of  the 
fight.  Does  the  case  under  consideration,  where  both  parties  seize 
upon  weapons  not  prepared  beforehand,  but  of  a  most  unwieldy 
kind,  and  continue  to  use  the  same  weapons  throughout  the  con- 
flict, bear  any  comparison  in  regard  to  its  enormity  with  the  cases 
of  manslaughter  stated  above? 

To  go  more  into  particulars :  In  order  to  make  the  proper  ap- 
plication of  a  rule  of  law,  .it  is  necessary  to  reflect  and  see  upon 
what  principle  the  rule  is  founded,  although  there  be  a  great 
provocation,  if  the  presumption  that  the  party  acted  under  it  is 
rebutted,  and  it  be  shown  that  he  acted  from  malice,  the  killing 
is  murder.  State  v.  Johnson,  1  Ired.,  354;  State  v.  Martin,  2 
Ired.  101.  If  one  puts  his  adversary  to  death  in  an  unusual  man- 
ner, the  fact  of  his  going  out  of  the  usual  way,  shows  that  he 
acted  deliberately,  and  not  under  the  impulse  of  passion,  which 
always  moves  straightforward.  Such  deliberation  shows  malice. 
This  is  the  principle  (and  it  is  founded  in  our  nature)  upon 
which  the  exception  is  made.  For  instance,  two  men  upon  a  sud- 
den quarrel,  engage  in  a  bloody  fight,  and  are  separated;  where- 
upon, one  of  them  proposed  to  "drink  as  friends,"  and  contrived 
to  put  poison  in  the  cup  of  his  adversary:  this  is  murder;  for, 
although  there  is  great  provocation,  and  the  thing  is  done  in- 
stantly, while  the  blood  flows  and  the  wounds  continue  to  smart, 
still,  it  was  not  done  in  the  way  that  passion  influences  men  to 
act,  and  shows  deliberate  wickedness  of  heart,  which  amounts  to 


344  SPECIFIC   CRIMES. 

malice.  1  Hale,  453.  So,  if  two  persons  fight,  and  one  of  them 
overpowers  the  other,  and  then  puts  a  rope  around  his  neck,  and 
strangles  him,  it  is  murder.  "The  act  is  so  willful  and  deliberate, 
that  nothing  can  justify  it"  Rex.  v.  Shaw,  25  E.  C.  L.  443. 

On  the  other  hand,  we  will  state  two  other  cases  which  were 
held  not  to  come  within  the  exception — upon  a  sudden  quarrel, 
the  prisoner  pushed  the  deceased  down ;  he  got  up  and  struck  the 
prisoner  several  blows  in  the  face  with  his  fist;  the  prisoner 
pushed  him  down  again,  and  stamped  him  upon  the  belly  and  stom- 
ach two  or  three  times,  and  as  he  was  getting  up,  kicked  him  in 
the  face,  "the  blood  came  out  of  the  mouth  and  nose  of  deceased, 
he  fell  backwards,  and  died  the  next  day."  Held  to  be  man- 
slaughter. Ayes'  case,  1st  Russel  496. 

Upon  a  sudden  quarrel,  two  draw  their  swords  and  fight,  the 
prisoner  runs  his  sword  through  the  body  of  the  deceased,  and 
after  he  fell,  took  him  by  the  nape  of  the  neck,  dashed  his  head 
upon  the  ground,  and  said,  "d — n  you,  you  are  dead."  Jenner, 
B.,  told  the  jury  this  was  only  manslaughter;  but  the  jury  were 
disposed  to  find  it  murder,  because  of  the  dashing  of  the  head 
against  the  ground;  but  Allison,  J.,  repeated  to  them  that  it  was 
manslaughter  only,  and  they  found  accordingly.  Watters'  case, 
12  State  Tri.  113.  The  cases  put  above  of  one  who,  after  engag- 
ing in  a  fist  fight,  without  notice,  stabs  his  adversary  to  the  heart 
with  a  knife,  or  blows  his  brains  out  with  a  pistol,  are  as  strong, 
if  not  stronger,  than  either  of  the  two;  and  the  principle  is  es- 
tablished, that  where  there  is  a  strong  provocation,  and  the  vio- 
lence is  but  the  natural  and  usual  effect  of  passion  excited  to  the 
highest  pitch,  the  killing  is  but  manslaughter.  We,  therefore, 
think  his  honor  erred  in  holding  that  the  prisoner's  case  came 
within  the  exception,  and  that  he  ought  to  have  instructed  the 
jury  that  it  was  manslaughter  only;  for  there  was  a  strong  provo- 
cation, greatly  excited  by  the  exchange  of  blows,  and  the  many 
blows  given,  or  attempted  to  be  given,  while  the  deceased  was 
lying  on  the  bottom  of  the  boat,  were  but  the  natural  and  ordi- 
nary effect  of  blind  passion  or  furor  brevis,  as  the  books  call  it. 
Under  such  circumstances,  a  man  is  not  expected  to  count  his 
blows  or  note  their  violence. 

The  general  rule  is,  that  a  killing  upon  legal  provocation  is 
manslaughter.  There  is  a  second  exception — if  the  provocation 


STATE  V.   CURRY.  345 

be  slight,  or  as  Foster  calls  it  "trivial,"  and  the  killing  is  done 
with  a  degree  of  violence  out  of  all  proportion  to  the  provocation,' 
it  is  murder.  The  exception  is  made  upon  the  ground,  that  as 
the  provocation  was  slight,  such  excessive  violence  cannot  be  at- 
tributed to  it,  and  must  proceed  from  wickedness  of  heart: 
malice,  not  passion.  This  exception,  as  a  matter  of  course,  only 
applies  where  the  provocation  is  slight;  for,  if  the  provocation  be 
great,  the  violence  cannot  be  out  of  all  proportion  to  it.  Ac- 
cordingly, Foster,  in  his  Crown  Law,  291  and  292,  expressly 
confines  it  to  "cases  of  homicides  upon  slight  provocation;"  and 
for  illustration,  refers  to  several  cases.  A.,  finding  a  trespasser 
upon  his  land,  knocks  his  brains  out  with  a  hedge  stake.  This  is 
murder,  because  of  the  excess  of  violence.  A  parker  found  a  boy 
stealing  wood.  He  bound  him  to  his  horse's  tail  and  beat  him: 
the  horse  took  fright,  ran  off,  and  dragged  the  boy  on  the  ground, 
so  that  he  died.  This  was  held  to  be  murder.  The  judges  laid 
much  stress  upon  the  fact,  that  the  boy  come  down  out  of  the 
tree  as  soon  as  he  was  bid,  and  made  no  resistance.  So  the  pro- 
vocation was  slight.  Crown  Cases,  131. 

the  breast  with  a  pummel  of  his  sword.  The  woman  fled.  He 
the  breast  with  a  pummel  of  his  sword.  The  woman  fled.  He 
pursued  and  stabbed  her  in  the  back.  "Holt  was  at  first  of  opin- 
ion that  this  was  murder.  A  single  box  on  the  ear  from  a  woman 
not  being  a  sufficient  provocation  to  kill  in  this  manner,  after  he 
had  given  her  a  blow  in  return  for  the  box  on  the  ear."  But, 
afterwards,  it  appearing  that  the  woman  had  struck  the  soldier 
in  the  face  with  an  iron  patten,  and  drew  a  great  deal  of  blood, 
it  was  held  clearly  to  be  no  more  than  manslaughter.  This  case, 
and  the  others  put  by  Foster,  show  conclusively,  that  the  excep- 
tion we  are  now  considering,  only  applies  to  cases  where  the  pro- 
vocation is  slight.  His  honor,  in  the  first  part  of  the  charge, 
held,  that  the  prisoner's  case  fell  within  the  exception,  and  failed 
to  advert  to  the  fact  the  doctrine  was  not  applicable,  because 
there  was  strong  provocation,  and  the  excitement  of  a  fight. 

There  is  a  third  exception.  If  one,  having  the  right  to  chas- 
tise, as  a  parent  or  master,  exceeds  the  bounds  of  moderation,  the 
killing,  although  he  did  not  intend  to  kill,  will  be  manslaughter, 
as  a  general  rule.  The  exception  is,  that  if  the  measure  of  the 
punishment,  or  the  instrument  used,  is  "likely  to  kill,  due  regard 


346  SPECIFIC   CRIMES. 

being  always  had  to  the  age  and  strength  of  the  party,  the  of- 
fence is  murder."  Foster,  262.  As  where  a  master  corrected  his 
servant  with  an  iron  bar,  and  a  schoolmaster  stamped  on  a 
scholar's  belly,  so  that  they  died.  4  Blackstone,  199. 

This  exception  has  no  bearing  upon  the  case  before  us,  but  we 
thought  it  proper  to  state  it,  in  connection  with  the  two  others, 
so  that  the  whole  might  be  presented,  and  the  dividing  line,  be- 
tween the  three  exceptions  to  the  general  rule  in  regard  to  man- 
slaughter, might  be  distinctly  marked. 

1st.  Where  there  is  strong  provocation,  if  the  killing  is  done 
in  an  unusual  manner,  it  is  murder. 

2nd.  Where  there  is  but  slight  provocation,  if  the  killing  is 
done  with  an  excess  of  violence,  out  of  all  proportion  to  the  pro- 
vocation, it  is  murder. 

3rd.  Where  the  right  to  chastise  is  abused,  if  the  measure  of 
chastisement  or  the  weapons  used  be  likely  to  kill,  it  is  murder. 

We  were  induced  to  enter  thus  fully  into  the  subject,  for  the 
purpose  of  explaining  some  general  remarks  that  fell  from  the 
court  in  the  opinion  delivered  in  the  case  of  State  v.  Jarratt,  1st 
Ired.,  86,  which  (as  we  suppose)  misled  the  learned  judge  who 
tried  the  case  below,  by  confounding  the  distinction  between  the 
1st  and  2d  exceptions,  so  as  to  put  a  case  of  strong  or  "grievous" 
provocation  upon  the  same  footing  with  one  where  the  provoca- 
tion was  slight  and  "trivial." 

Judgment  reversed. 
Venire  de  novo. 

Ex  parte  Warrick,  73  Ala.  57;  Smith  v.  State,  83  Ala.  26;  Collins  v. 
•U.  S.,  150  U.  S.  62;  State  v.  Kloss,  117  Mo.  591;  Ayres  v.  State,  26  S.  W. 
396;  State  v.  Berkley,  109  Mo.  665;  McDuffle  v.  State,  17  S.  E.  105;  Sta'e 
v.  Scott,  36  W.  Va.  704;  Rex  v.  Hay  ward,  6  Car.  &  P.  157;  McManus  v. 
State,  36  Ala.  285;  Slaughter  v.  Com.,  11  Leigh  (Va.)  681;  Reese  v.  State, 
W  Ala.  624;  Maher  v.  People,  10  Mich.  212;  People  v.  Freel,  48  Cal.  436; 
Davis  v.  People,  114  111.  86;  State  v.  Matakwich,  59  Minn.  514;  Clark  p. 
165;  Bishop  II.,  Sec.  697;  Wharton,  Sec.  304;  Hawley  &  McGregor,  p. 
143;  The  Penal  Code  of  Pa.;  Shields,  vol.  II.,  961-963. 

NOTE.— Acts  which  will  inflict  bodily  harm  or  cause  great  insult  are 
sufficient  provocation. 

Schlect  v.  State,  75  Wis.  486;  Clark,  p.  168;  Wharton,  Sec.  470;  Haw- 
ley  &  McGregor,  p.  145. 


PEOPLE   V.   BURT.  347 

NOTE.— By  the  Minnesota  statutes  all  homicides  not  murders,  nor 
justifiable  or  excusable,  are  manslaughters. 

Minn.  Stat.  1894,  Sec.  6444;  N.  Y.  Penal  Code,  Sec.  188. 

NOTE.— The  Minnesota  code  makes  all  killings  occurring  in  heat  of 
passion,  but  in  a  cruel  and  unusual  manner,  by  means  of  a  dangerous 
weapon,  manslaughter  in  the  first  degree. 

Minn.  Stat.  1894,  Sees.  6445,  6447;  N.  Y.  Penal  Code,  Sec.  189. 

NOTE. — Cooling  time.  If  time  elapses  sufficient  for  the  passion  to  cool, 
it  is  murder  though  the  passion  has  not  subsided. 

McNeil  v.  State,  15  So.  352;  State  v.  Savage,  78  N.  C.  520;  State  v. 
Holmes,  40  Pac.  735;  Maher  v.  People,  10  Mich  212;  State  v.  Hill,  4 
Dev.  &  B.  491;  Bishop  II.,  Sec.  711;  Wharton,  Sec.  480. 


(22)  In  resisting  an  unlawful  arrest. 

PEOPLE  v.  BURT. 

Supreme  Court  of  Michigan,  1883. 
51  Mich.  199;  16  N.  W.  378. 

CAMPBELL,  J.  Respondent,  having  been  convicted  of  murder, 
was  sentenced  to  twenty  years'  imprisonment,  and  brings  error. 
The  attorney  general,  on  careful  consideration  of  the  case,  has 
concluded  that  he  cannot  uphold  the  conviction.  We  are  of  the 
same  opinion.  But  inasmuch  as  we  are  to  consider  whether  the 
prisoner  should  be  retained  for  further  trial  or  discharged,  we 
are  compelled  to  deal  with  it  far  enough  to  determine  that  ques- 
tion. 

Respondent  is  charged  with  murdering  one  Martin  Van  Etter 
on  the  18th  of  October,  1867.  The  complaint  and  warrant  for  his 
arrest  were  made  in  January,  1879, — between  eleven  and  twelve 
years  afterwards.  The  testimony  showed  that  he  could  have  been 
reached  at  almost  any  time  during  this  interval,  and  no  good  rea- 
son was  shown  for  any  delay.  As  his  defence  consisted  partly  of 
proof  that  he  was  at  that  time  in  a  different  part  of  the  State, 
and  his  identification  depended  chiefly  on  testimony  of  a  witness 
very  strongly  interested  in  clearing  himself  from  a  bad  case  of 
wrongdoing  under  color  of  zeal  for  the  public  service,  the  delay 
was  at  least  unfortunate  in  rendering  testimony  of  so  stale  a 
transaction  unsafe. 


348  SPECIFIC  CRIMES. 

Without  going  over  all  the  facts  an  outline  of  the  principal 
matters  will  be  enough  to  explain  our  legal  views.  Some  burg- 
laries having  been  recently  committed  at  Williamston,  in  Ing- 
ham  county,  where  respondent  had  been  doing  business,  one 
Carr,  who  was  a  constable  of  Ingham  county,  undertook,  with 
Van  Etter's  co-operation,  to  see  what  they  could  discover  on  the 
subject.  They  had  no  indications  or  suspicions,  well  or  ill- 
founded,  pointing  toward  any  person  as  the  criminal.  They 
procured  revolvers  and  stationed  themselves  by  a  bridge  near 
Fowlerville  in  Livingston  county,  with  the  purpose  of  compelling 
passers-by  to  submit  to  a  search,  expecting  thereby  to  get  at  in- 
dications of  guilt  in  somebody.  The  person  who  killed  Van 
Etter,  and  who  is  claimed  to  have  been  respondent,  having,  while 
passing  along  the  highway,  reached  the  bridge,  was  'stopped, 
against  his  remonstrances,  by  these  parties,  and  they  endeavored 
to  compel  him  to  accompany  them  to  Fowlerville — as  Carr 
claims — to  be  searched.  He  warned  them  off  once  or  twice  if 
not  oftener,  and  charged  them  with  designing  to  rob  him.  Carr 
claims  to  have  informed  him  of  the  burglaries  and  to  have  also- 
told  him  that  he  was  showing  guilt  in  the  matter.  Having  kept 
a  few  paces  in  advance  of  them, — they  following  him  with  wea- 
pons, and  Van  Etter's  pistol,  if  not  Carr's,  being  cocked, — he  at- 
tempted to  evade  them  by  running  off  southward  across  the  ditch, 
and  when  about  twenty  feet  off  he  whirled  round  and  fired  and 
shot  Van  Etter  through  the  bowels.  Van  Etter  fired  at  him,  the 
shots  being  nearly  simultaneous.  Carr  fired  several  shots  after 
him,  and  thought  he  hit  him. 

In  order  to  make  the  act  of  the  assailant  murder,  the  prosecu- 
tion undertook  to  show  that  he  was  resisting  or  evading  a  lawful 
arrest,  and  to  do  so  they  were  allowed  to  prove  the  burglaries, 
and  the  subsequent  action  of  Carr  and  his  associate  as  based  on 
probable  cause.  At  least,  no  other  reason  can  very  well  be  sug- 
gested for  allowing  such  proof. 

Carr,  when  acting  out  of  his  own  county,  was  not  vested  with 
official  character.  But  no  one,  whether  private  person  or  officer, 
has  any  right  to  make  an  arrest  without  warrant  in  the  absence 
of  actual  belief,  based  on  actual  facts  creating  probable  cause  of 
guilt.  Suspicion  without  cause  can  never  be  an  excuse  for  such 
action.  The  two  must  both  exist,  and  be  reasonably  well  founded. 


PEOPLE  V.    BURT.  349 

We  need  not  now  go  further, — although  we  may  perhaps  say 
that  no  one  can  be  justified  in  threatening  or  taking  life  in  at- 
tempting an  arrest  on  suspicion,  without  incurring  serious  re- 
sponsibilities. And  where  the  life  of  an  actual  felon  is  taken  by 
one  who  does  not  know  or  believe  his  guilt,  such  slaying  is  mur- 
der. A  private  citizen  has  less  immunity  than  an  officer.  But 
we  need  not  discuss  their  respective  rights  or  liabilities,  because 
neither  Carr  nor  Van  Etter  were  proceeding  on  any  honest  belief 
or  well-founded  suspicion.  Except  in  the  lack  of  specific  inten- 
tion to  rob  they  in  no  way  differed  from  any  highway  wrong- 
doe  rs,  and  their  appearance  would  justify  any  one  in  believing 
them  to  be  dangerous  criminals.  Any  serious  injury  done  by 
them  could  hardly  fail  to  be  a  felony. 

The  proof  of  the  Williamston  burglaries  was  therefore  im- 
proper, because  defendant  was  not  on  trial  for  them,  and  because 
his  attempted  arrest  was  not  warranted  by  any  honest  and  well- 
founded  supposition  of  his  complicity  in  them. 

From  the  facts  as  detailed  by  Carr  himself  we  are  strongly  in- 
clined to  think  he  made  out  a  case  of  justifiable  homicide.  But 
whether  this  was  absolutely  shown  or  not,  the  case  should  have 
been  put  to  the  jury  on  that  hypothesis,  and  if  they  thought  that 
Van  Etter  was  killed  by  a  person  who  believed  his  own  safety  to 
be  in  peril  from  Carr  and  Van  Etter's  lawless  violence,  the  re- 
spondent should  have  been  acquitted  on  that  ground. 

This,  however,  is  now  immaterial,  because  even  if  the  homi- 
cide was  voluntary,  there  can  be  no  doubt  that,  having  been 
provoked  by  unlawful  violence  and  the  display  of  deadly  wea- 
pons to  compel  submission  to  a  wrongful  arrest,  the  killing  could 
not  be  more  than  manslaughter;  and  it  should  have  been  so  held. 

The  conviction  was  erroneous,  and  the  judgment  must  be 
vacated.  And  inasmuch  as,  if  respondent  had  been  indicted  for 
manslaughter,  the  prosecution  would  have  been  outlawed,  he 
should  not  be  subjected  to  another  trial  but  should  be  discharged. 
Inasmuch  as  the  attorney  general  has  appeared  in  this  case,  we 
can  pay  no  attention  to  suggestions  from  other  parties,  and  as  we 
have  no  doubt  the  papers  before  us  are  substantially  correct,  it 
would  not  be  just  to  postpone  the  decision. 

The  other  justices  concurred. 


350  SPECIFIC   CRIMES. 

Drennan  v.  People,  10  Mich.  169;  Croom  v.  State,  85  Ga.  718;  State  c. 
Scheele,  57  Conn.  307;  Creighton  v.  Com.,  84  Ky.  103;  Rafferty  v.  Peo- 
ple, 69  111.  Ill;  Roberts  v.  State,  14  Mo.  138;  State  v.  Levelle,  13  S.  B. 
319;  Clark  p.  169;  Bishop  II.,  Sec.  699;  Hawley  &  McGregor,  p.  147. 


(b1)  Involuntary. 

Involuntary  manslaughter  is  where  death  is  caused  by 
the  doing  of  an  unlawful  act  neither  a  felony  nor  dangerous 
to  life  or  a  lawful  act  improperly,  but  without  the  intention 
to  take  life. 

(I2)  In  the  doing  of  an  unlawful  act. 
Misdemeanor. 

WELLAR  v.  THE  PEOPLE. 

Supreme  Court  of  Michigan,  1874. 
30  Mich.  16. 

CAMPBELL,  J. 

Plaintiff  in  error  was  convicted  of  the  murder  of  Margaret 
Campbell  by  personal  violence  committed  on  July  25,  1873. 
They  had  lived  together  for  several  months,  and  on  the  occasion 
of  her  death  she  had  been  out  on  an  errand  of  her  own  in  the 
neighborhood,  and  on  coming  back  into  the  house  entered  the 
front  door  of  the  bar-room,  and  fell,  or  was  knocked  down  upon 
the  floor.  While  on  the  floor  there  was  evidence  tending  to  show 
that  Wellar  ordered  her  to  get  up,  and  kicked  her,  and  that  he 
drew  her  from  the  bar-room  through  the  dining-room  into  a 
bedroom,  where  he  left  her,  and  where  she  afterwards  died.  The 
injury  of  which  she  died  was  inflicted  on  her  left  temple,  and  the 
evidence  does  not  seem  to  have  been  clear  how  she  received  it  or 
at  what  specific  time.  It  was  claimed  by  the  prosecution  to  have 
been  inflicted  by  a  blow  when  she  first  came  in,  and  if  not,  then 
by  a  blow  or  kick  afterwards.  All  of  the  testimony  is  not  re- 


WELLAR   V.   THE  PEOPLE.  351 

turned,  and  the  principal  questions  arise  out  of  rulings  which 
depend  on  the  assumption  that  the  jury  might  find  that  her  death 
was  caused  by  some  violent  act  of  Wellar's;  which  they  must 
have  done  to  convict  him.  There  can  be  no  question  but  that, 
if  she  so  came  to  her  death,  he  was  guilty  of  either  murder  or 
manslaughter.  The  complaint  made  against  the  charge  is  that 
a  theory  was  put  to  the  jury  on  which  they  were  instructed  to 
find  as  murder  what  would,  or  at  least  might  be  manslaughter. 

There  was  no  proof  tending  to  show  the  use  of  any  weapon, 
and,  if  we  may  judge  from  the  charge,  the  prosecution  claimed 
the  fatal  injury  came  from  a  blow  of  Wellar's  fist,  given  as  she 
entered  the  house.  The  judge  seems  to  have  regarded  it  as  shown 
by  a  preponderance  of  proof,  that  the  injury  was  visible  when 
she  was  in  the  bar-room,  and  that  the  principal  dispute  was  as  to 
how  it  was  caused, whether  by  a  blow,  or  kick,  or  by  accident. 
It  also  appears  that,  if  inflicted  in  that  room,  it  did  not  produce 
insensibility  at  the  time  if  inflicted  before  the  prisoner  dragged 
her  into  the  bedroom.  It  does  not  appear  from  the  case  at  what 
hour  she  died. 

It  may  be  proper  to  remark  that  while  it  is  not  desirable  to  in- 
troduce all  the  testimony  into  a  bill  of  exceptions  in  a  criminal 
case,  it  is  important  to  indicate  in  some  way  the  whole  chain  of 
facts  which  the  evidence  tends  to  prove.  Without  this  we  cannot 
fully  appreciate  the  relations  of  many  of  the  rulings,  or  know 
what  instructions  may  be  necessary  to  be  sent  down  to  the  court 
below.  The  bill  before  us  is  full  upon  some  things,  but  leaves 
out  some  things  which  it  would  have  been  better  to  include. 

Upon  any  of  the  theories  presented,  there  is  no  difficulty  in 
seeing  that  if  Wellar  killed  the  deceased,  and  if  he  distinctly  in- 
tended to  kill  her,  his  crime  was  murder.  It  is  not  claimed  on 
his  behalf  that  there  was  any  proof  which  could  reduce  the  act 
to  manslaughter  if  there  was  a  specific  design  to  take  life.  Upon 
this  the  charge  was  full  and  pointed,  and  is  not  complained  of. 
There  was  no  claim  that  he  had  been  provoked  in  such  a  way  or 
to  such  an  extent  as  to  mitigate  intentional  slaying  to  any  thing 
below  one  of  the  degrees  of  murder. 

But  it  is  claimed  that,  although  the  injury  given  was  fatal, 
yet,  if  not  intended  to  produce  any  such  results,  it  was  of  such  a 
character  that  the  jury  might,  and  properly  should,  have  con- 


352  SPECIFIC  CRIMES. 

sidered  it  as  resting  on  different  grounds  from  those  which  deter- 
mine responsibility  for  acts  done  with  deadly  weapons  used  in  a 
way  likely  to  produce  dangerous  consequences.  But  the  charge 
of  the  court  did  not  permit  them  to  take  that  view. 

It  will  be  found  by  careful  inspection  of  the  charge,  that  the 
court  specifically  instructed  the  jury,  that  if  Wellar  committed 
the  homicide  at  all,  it  would  be  murder,  and  not  manslaughter, 
unless  it  was  committed  under  such  extreme  provocation  as  is 
recognized  in  the  authorities  as  sufficient  to  reduce  intentional 
and  voluntary  homicide  committed  with  a  deadly  weapon  to  that 
degree  of  crime.  And  in  this  connection  the  charge  further  given 
that  if  the  intent  of  the  respondent  was  to  commit  bodily  harm, 
he  was  responsible  for  the  result,  because  he  acted  willfully  and 
maliciously  in  doing  the  injury  necessarily  led  to  a  conviction  of 
murder,  because  there  was  no  pretence  of  any  provocation  of 
that  kind. 

Manslaughter  is  a  very  serious  felony,  and  may  be  punished 
severely.  The  discretionary  punishment  for  murder  in  the  sec- 
ond degree  comes  considerably  short  of  the  maximum  punish- 
ment for  manslaughter.  But  the  distinction  is  a  vital  one,  resting 
chiefly  on  the  greater  disregard  of  human  life  shown  in  the 
higher  crime.  And  in  determining  whether  a  person  who  has  killed 
another  without  meaning  to  kill  him  is  guilty  of  murder  or  man- 
slaughter, the  nature  and  extent  of  the  injury  or  wrong  which 
was  actually  intended,  must  usually  be  of  controlling  import- 
ance. 

It  is  not  necessary  in  all  cases  that  one  held  for  murder  must 
have  intended  to  take  the  life  of  the  person  he  slays  by  his  wrong- 
ful act.  It  is  not  always  necessary  that  he  must  have  intended  a 
personal  injury  to  such  person.  But  it  is  necessary  that  the  in- 
tent with  which  he  acted  shall  be  equivalent  in  legal  character  to 
a  criminal  purpose  aimed  against  life.  Generally  the  intent  must 
have  been  to  commit  either  a  specific  felony,  or  at  least  an  act 
involving  all  the  wickedness  of  a  felony.  And  if  the  intent  be 
directly  to  produce  a  bodily  injury,  it  must  be  such  an  injury  as 
may  be  expected  to  involve  serious  consequences,  either  perilling 
life  or  leading  to  great  bodily  harm.  There  is  no  rule  recognized 
as  authority  which  will  allow  a  conviction  of  murder  where  a 
fatal  result  was  not  intended,  unless  the  injury  intended  was  one 


WELLAR  V.  THE   PEOPLE.  353 

of  a  very  serious  character  which  might  naturally  and  commonly 
involve  loss  of  life  or  grievous  mischief.  Every  assault  involves 
bodily  harm.  But  any  doctrine  which  would  hold  every  assailant 
as  a  murderer  where  death  follows  his  act,  would  be  barbarous 
and  unreasonable. 

The  language  used  in  most  of  the  statutes  on  felonious  as- 
saults, is,  an  intent  to  do  "grievous  bodily  harm."  Carr.  Sup.,  p. 
237.  And  even  such  an  assault,  though  "unlawfully  and 
maliciously"  made,  is  recognized  as  one  where,  if  death  followed, 
the  result  would  not  necessarily  have  been  murder. — Ibid.  Our 
own  statutes  have  made  no  provision  for  rendering  assaults 
felonious,  unless  committed  with  a  dangerous  weapon,  or  with  an 
intent  to  commit  some  felony.  Comp.  L.,  ch.  244. 

In  general,  it  has  been  held  that  where  the  assault  is  not  com- 
mitted with  a  deadly  weapon,  the  intent  must  be  clearly  fel- 
onious, or  the  death  will  subject  only  to  the  charge  of  man- 
slaughter. The  presumption  arising  from  the  character  of  the 
instrument  of  violence,  is  not  conclusive  in  either  way,  but  where 
such  weapons  are  used  as  do  not  usually  kill,  the  deadly  intent 
ought  to  be  left  in  no  doubt.  There  are  cases  on  record  where 
death  by  beating  and  kicking  has  been  held  to  warrant  a  verdict 
of  murder,  the  murderous  intent  being  found.  But  where  there 
was  no  such  intent  the  ruling  has  been  otherwise.  In  State  v. 
McNab,  20  N".  H.,  160,  it  is  held  that  unless  the  unlawful  act  of 
violence  intended  was  felonious,  the  offence  was  manslaughter. 
The  same  doctrine  is  laid  down  in  State  v.  Smith,  32  Maine,  369. 
That  is  the  statutory  rule  in  New  York  and  in  some  other  States. 

The  willful  use  of  a  deadly  weapon,  without  excuse  or  provoca- 
tion, in  such  a  manner  as  to  imperil  life,  is  almost  universally 
recognized  as  showing  a  felonious  intent.  See  2  Bish.  Or.  L.,  sees. 
680,  681.  But  where  the  weapon  or  implement  used  is  not  one 
likely  to  kill  or  to  maim,  the  killing  is  held  to  be  manslaughter, 
unless  there  is  an  actual  intent  which  shows  a  felonious  purpose. 
See  Turner's  Case,  1  Raym.,  144,  where  a  servant  was  hit  on  the 
head  with  a  clog;  State  v.  Jarrott,  1  Ired.,  76,  where  the  blow 
was  with  a  hickory  stick;  Holly  v.  State,  10  Humph.,  141,  where 
a  boy  threw  a  stone;  Rex  v.  Kelly,  1  Moody,  C.  C.,  113,  where  it 
was  uncertain  whether  a  person  was  killed  by  a  blow  with  the 
fist,  which  threw  him  on  a  brick,  or  by  a  blow  from  a  brick,  and 
23 


354  SPECIFIC   CRIMES. 

the  court  held  it  a  clear  case  of  manslaughter.  In  Darry  v.  Peo- 
ple, 10  N.  Y.,  120,  the  distinctions  are  mentioned  and  relied 
upon,  and  in  the  opinion  of  Parker,  J.,  there  are  some  remarks 
very  applicable.  In  the  case  of  Com.  v.  Webster,  5  Gush.  R., 
295,  the  rulings  of  which  have  been  regarded  as  going  beyond 
law  in  severity,  this  question  is  dealt  with  in  accordance  with 
the  same  views,  and  quotations  are  given  from  East  to  the  same 
purport. 

The  case  of  death  in  a  prize  fight  is  one  of  the  commonest 
illustrations  of  manslaughter,  where  there  is  a  deliberate  arrange- 
ment to  fight,  and  where  great  violence  is  always  to  be  expected 
from  the  strength  of  the  parties  and  the  purpose  of  fighting  till 
one  or  the  other  is  unable  to  continue  the  contest.  A  duel  with 
deadly  weapons  renders  every  killing  murder;  but  a  fight  without 
weapons,  or  with  weapons  not  deadly,  leads  only  to  manslaughter, 
unless  death  is  intended.  1  East,  P.  C.,  270;  Murphy's  Case,  6 
C.  &  P.,  103;  Hargrave's  Case,  5  C.  &  P.,  170. 

The  case  of  Commonwealth  v.  Fox,  7  Gray,  585,  is  one  re- 
sembling the  present  in  several  respects,  in  which  the  offence  was 
held  to  be  manslaughter. 

The  jury  were  sufficiently  and  rightly  charged  upon  the  ex- 
tent of  the  respondent's  liability  for  any  intended  killing.  And 
if  respondent  willfully  and  violently  kicked  the  deceased  in  such 
a  way  as  he  must  have  known  would  endanger  her  life,  and  her 
life  was  destroyed  in  that  way,  an  actual  intention  of  killing 
would  not  be  necessary,  as  in  such  case  the  death  would  have 
been  a  result  he  might  fairly  be  held  to  regard  as  likely.  But  it  was 
certainly  open  to  him  to  claim  that,  whatever  may  have  been  the 
cause  of  death,  he  did  nothing  which  was  designed  to  produce 
any  serious  or  fatal  mischief,  and  that  the  injury  from  which  the 
deceased  came  to  her  death  was  not  intentionally  aimed  at  a  vital 
spot,  or  one  where  the  consequences  would  be  probably  or 
manifestly  dangerous.  We  have  no  right  to  say  that  there  was 
no  room  for  a  verdict  of  manslaughter,  and  the  effect  of  the 
charge  was  to  deny  this. 

Most  of  the  other  questions  are  pf  such  a  nature  that,  if  arising 
on  another  a  trial,  they  will  be  presented  in  a  more  guarded  form. 
We  have  no  doubt  it  is  proper  to  show  the  previous  relations  of 
Wellar  and  the  deceased,  and  that  they  may  be  of  more  or  less 


WELLAR  V.   THE  PEOPLE.  355 

importance  in  explaining  conduct  and  motives.  We  are  also  in- 
clined to  think  it  would  not  be  incompetent  to  show  the  physical 
strength  of  the  respective  parties.  It  is  objectionable,  however, 
to  prove  these  things  by  evidence  of  specific  acts,  especially 
where  inferences  might  be  drawn  unfavorable  to  the  prisoner's 
character,  which  would  not  be  relevant  to  the  charge.  These  in- 
quiries should  be  general,  and  not  leading,  and  should  not, 
where  it  can  be  avoided,  introduce  irrelevant  matter. 

We  also  think  it  was  not  correct  practice  to  compel  the  de- 
fence, instead  of  the  prosecution,  to  call  the  witness  Malladay. 
It  appeared  that  he  was  one  of  two  persons  present  at  the  occur- 
rence for  which  Wellar  was  on  trial,  and  it  further  appeared  that 
.his  name  was  endorsed  on  the  information  as  one  of  the  people's 
witnesses,  so  that  he  was  not  unknown  to  the  prosecution.  It 
devolves  on  the  prosecutor  in  a  case  of  homicide,  to  connect  the 
prisoner  with  the  injury  which  is  claimed  to  have  been  the  cause 
of  death,  and  to  give  all  the  testimony  in  his  power  going  to  the 
proof  of  the  corpus  delicti.  The  fact  that  the  name  of  a  witness 
is  endorsed  on  the  information,  does  not  of  itself  involve  any 
necessary  obligation  to  do  any  more  than  have  the  witness  ins. 
court  ready  to  be  examined.  Rex  v.  Simmonds,  1  C.  &  P.,  84;; 
Rex  v.  Beezley,  4  C.  &  P.,  220;  Reg.  v.  Bull,  9  C.  &  R,  22;. 
Reg.  v.  Bodle,  6  C.  &  P.,  186;  Reg.  v.  Vincent,  9  C.  &  P.,  91  p 
Rex  v.  Harris,  7  C.  &  P.,  581.  But  in  cases  of  homicide,  and  ins 
others  where  analogous  reasons  exist,  those  witnesses  who  were-, 
present  at  the  transaction,  or  who  can  give  direct  evidence  on  any 
material  branch  of  it,  should  always  be  called,  unless,  possiblyy 
where  too  numerous.  If  there  is  any  other  admissible  reason, 
none  has  yet  been  passed  upon,  and  none  has  been  presented 
which  could  apply  to  the  case  before  us.  If  some  one  were  to 
come  forward  and  assert  his  presence  when  he  had  not  been  seen 
or  noticed  by  others,  there  might  be  room  for  questioning  his: 
position.  But  where  there  is  no  doubt  or  dispute  as  to  the  fact 
of  presence,  no  such  question  can  arise,  and  the  only  objection 
then  will  be  that  he  may  not  be  favorable  to  the  prosecution. 
But  this  is  no  answer,  any  more  than  it  would  be  if  a  subscrib- 
ing witness  stood  in  a  similar  position.  As  explained  in  Hurd  v~ 
People,  25  Mich.,  406,  and  in  the  English  cases  there  referred  to, 
a  public  prosecutor  is  not  a  plaintiff's  attorney,  but  a  sworn  min- 


356  SPECIFIC   CRIMES. 

ister  of  justice,  as  much  bound  to  protect  the  innocent  as  to  pur- 
sue the  guilty,  and  he  has  no  right  to  suppress  testimony.  The 
fact  that  he  is  compelled  to  call  these  witnesses,  when  he  may  not 
always  find  them  disposed  to  frankness,  entitles  him,  when  it 
appears  necessary,  to  press  them  with  searching  questions.  Reg. 
v.  Ball,  8  C.  &  P.,  745;  Reg.  v.  Chapman,  8  C.  &  P.,  558.  By 
this  means,  and  by  laying  all  the  facts  before  the  jury,  they  are 
quite  as  likely  to  get  at  the  truth  as  if  he  were  allowed  to  im- 
peach the  witnesses  who  disappoint  him.  Any  intelligent  jury 
will  readily  discover  whether  a  witness  whom  the  prosecutor  has 
been  compelled  to  call  is  fair  or  adverse,  and  can  make  all  proper 
allowance  for  bias,  or  any  other  influence  which  may  affect  his 
credit.  If  there  is  but  a  single  eye  witnessj  he  could  not  be  im- 
peached, and  yet  the  danger  of  falsehood  is  quite  as  great,  and 
the  chances  of  its  correction  much  less  than  where  there  are  two, 
and  both  are  called.  And  if  such  a  witness  need  not  be  called  by 
the  prosecution,  the  defence  cannot  impeach  him,  and  must 
either  call  him,  and  run  the  risk  of  finding  him  against  them,  or, 
if  they  fail  to  call  him,  be  prejudiced  by  the  argument  that  they 
have  omitted  to  prove  what  was  in  their  power,  and  must  have 
•done  so  because  they  dared  not  call  out  the  facts.  There  is  no 
fairness  in  such  a  practice,  and  a  prosecutor  should  not  be  per- 
mitted to  resort  to  it.  He  is  not  responsible  for  the  shortcomings 
of  his  witnesses,  and  he  is  responsible  for  any  obstacle  thrown  in 
the  way  of  eliciting  all  the  facts. 

The  judgment  must  be  reversed,  and  a  new  trial  granted.  The 
respondent  to  be  remanded  to  the  custody  of  the  sheriff  of  Sagi- 
naw  county. 

COOLEY  and  CHRISTIANCY,  JJ.,  concurred. 
GRAVES,  CH.  J.,  did  not  sit  in  this  case. 

Adams  v.  State,  65  Ind.  565;  Rex  v.  Sullivan,  7  Car.  &  P.  641;  People 
v.  Stubenvoll,  62  Mich.  329;  Reg.  v.  Towers,  12  Cox  C.  C.  530;  Pool  v. 
State,  87  Ga.  526;  Yundt  v.  People,  65  111.  372;  People  v.  Olmstead,  30 
Mich.  431;  Lee  v.  State,  1  Cold.  62;  State  v.  Center,  35  Vt.  378;  Reg.  v. 
Knock,  14  Cox  C.  C.  1;  Clark  p.  172;  Wharton,  Sec.  305. 

CODE.— Many  statutes  make  an  unintentional  killing,  occurring  in 
the  doing  of  a  misdemeanor,  manslaughter  in  the  first  degree. 

Minn.  Stat.  1894,  Sec.  6445;  N.  Y.  Penal  Code,  Sec.  189. 


STATE  v.  O'BRIEN.  357 

NOTE.— Some  statutes  make  the  willful  killing  of  an  unborn  quick 
child,  by  an  injury  committed  on  the  person  of  the  mother  of  such 
child,  manslaughter  in  the  first  degree. 

Minn.  Stat.  1894,  Sec.  6446;  N.  Y.  Penal  Code,  Sec.  190;  Clark,  p.  179. 

NOTE.— Many  statutes  make  any  one  causing  the  death  of  a  woman* 
by  inducing  her  to  take  any  drug  to  secure  the  miscarriage  of  the 
woman,  unless  given  to  preserve  her  life,  guilty  of  manslaughter. 

Minn.  Stat.  1894,  Sec.  6447;  N.  Y.  Penal  Code,  Sec.  191;  Clark,  p.  174. 


(22)  In  the  doing  of  a  lawful  act  improperly. 
(a2)  Negligence. 

STATE  v.  O'BKIEN. 

Supreme  Court  of  New  Jersey,  1867. 
3  Vroom.  169  (32  N.  J.  L.  ). 

(Ante,  page  65.) 

Reg.  v.  Chamberlain,  10  Cox  C.  C.  486;  Reg.  v.  Dant,  10  Cox  C.  C.  102; 
People  v.  Slack,  90  Mich.  448;  Johnson  v.  State,  94  Ala.  35;  Rice  v. 
State,  8  Mo.  561;  State  v.  Hardister,  38  Ark.  605;  State  v.  Hardie,  47  la. 
647;  Clark,  pp.  175-176;  Bishop  I.,  Sec.  217;  Wharton,  Sec.  305. 

NOTE. — Most  statutes  make  death  resulting  from  culpable  negligence 
in  the  performance  of  a  legal  act  manslaughter  in  the  second  degree. 
Minn.  Stat.  1894,  Sees.  6451,  6457;  N.  Y.  Penal  Code,  Sec.  193. 

NOTE  (bj).— Self  defence. 

Runyan  v.  State,  57  Ind.  80;  Erwin  v.  State,  29  Ohio  St.  186. 

NOTE  (c*).— Chastisement. 

Powell  v.  State,  67  Miss.  119,  6  So.  646;  Regina  v.  Griffin,  11  Cox  C.  C. 
402;  Clark,  p.  174. 

NOTE  (d*).— Arrest. 

Doherty  v.  State,  53  N.  W.  1120. 


358  SPECIFIC   CRIMES. 

b. 

• 

Mayhem. 

Mayhem  at  common  law  is  the  act  of  willfully  depriving 
another  of  such  members  as  will  render  him  less  able  "  To 
defend  himself  or  annoy  his  enemies."  By  statute  any 
act  of  disfiguring  constitutes  the  crime. 

KITCHENS  v.  THE  STATE  OF  GEOBGIA. 

Supreme  Court  of  Georgia,  1888. 
80  Ga.  810;  7  S.  E.  209. 

THOMAS  J.  KITCHENS  was  indicted  for  the  offence  of  mayhem. 
The  material  parts  of  the  indictment  were  as  follows : 

"For  that  the  said  Thomas  J.  Kitchens,  on  the  30th  day  of 
May,  in  the  year  1887,  in  the  county  aforesaid,  did  then  and 
there,  unlawfully  and  with  force  and  arms,  willfully  and  mali- 
ciously injure,  wound  and  disfigure  the  private  parts  of  one 
Janie  Toler,  the  said  Janie  Toler  then  and  there  being  a  female, 
with  intention  then  and  there  to  disfigure  said  private  parts  by 
then  and  there  with  a  certain  knife  cutting  said  private  parts." 

The  State  and  the  accused  having  announced  ready  for  trial, 
before  the  case  went  to  the  jury  the  accused  demurred  to  the 
indictment: 

1.  Because  the  offence  charged  could  not  be  committed  on  a 
female. 

2.  Because  there  was  no  sufficient  specification  of  the  nature 
and  character  of  the  injury  inflicted. 

3.  Because  of  a  failure  to  negative  the  fact  that  the  injury  in- 
flicted did  not  amount  to  castration,  and  thus  negative  the  proviso 
or  exception  contained  in  the  section  of  the  code  under  which 
said  indictment  is  had. 

The  demurrer  was  overruled,  and  defendant  was  convicted. 
He  excepted  to  the  judgment  overruling  the  demurrer. 


KITCHENS   V.   THE   STATE   OF   GEORGIA.  359 

BLECKLEY,  C.  J.  1.  "Mayhem  shall  consist  in  unlawfully  de- 
priving a  person  of  a  member,  or  disfiguring  or  rendering  it  use- 
less." Code,  sec.  4339.  "If  any  person  shall  unlawfully,  and 
without  sufficient  cause  or  provocation,  cut  out  or  disable  the 
tongue,  put  out  an  eye,  slit  or  bite  the  nose,  ear  or  lip,  or  cut  or 
bite  off  the  nose,  ear  or  lip,  or  castrate,  or  cut,  or  bite  off, 
or  disable  any  other  limb  or  member  of  another,  with  intention 
in  so  doing  to  maim  or  disfigure  such  person,  or  shall  voluntarily, 
maliciously,  and  of  purpose,  while  fighting  or  otherwise,  do  any 
of  these  acts,  every  such  person  shall  be  guilty  of  mayhem."  Id. 
sec.  4340.  Section  4341  prescribes  the  penalty  for  cutting  out  or 
disabling  the  tongue;  section  4342,  for  putting  out  an  eye;  sec- 
tion 4343,  for  putting  out  both  or  the  only  eye;  section  4344, 
for  slitting  or  biting  the  nose,  ear  or  lip;  section  4345,  for  cut- 
ting or  biting  off  the  nose,  ear  or  lip;  section  4346,  for  castration. 
Then  section  4347  declares:  "A  person  convicted  of  willfully 
and  maliciously  injuring,  wounding  or  disfiguring  the  private 
parts  of  another,  with  the  intention  aforesaid,  whilst  fighting  or 
otherwise,  which  injury,  wounding  or  disfiguring  do  not  amount 
to  castration,  shall  be  punished,"  etc.  The  question  is,  whether 
the  private  parts  of  females  are  protected  against  wounding  or 
disfiguring,  or  whether  the  protection  extends  to  males  only.  The 
military  or  combative  importance  of  the  organ  injured  or  de- 
stroyed, to  which  the  old  common  law  had  special  regard,  is  of  no 
significance  whatever  as  a  constituent  of  mayhem  under  our 
code.  Whether  capacity  for  attack  or  defence  has  been  lessened 
by  the  maiming,  is  utterly  immaterial  and  irrelevant.  The  code 
looks  not  to  fighting,  to  giving  and  shunning  blows,  but  to  main- 
taining the  integrity  of  the  person,  the  natural  completeness  and 
comeliness  of  the  human  members  and  organs,  and  the  preserva- 
tion of  their  functions.  It  is  certain  that  as  to  every  specific 
organ  or  member  designated  by  name  as  the  subject  of  mayhem, 
both  sexes  are  included;  then,  why  are  not  both  included  under 
the  terms,  "private  parts  of  another?"  It  is  true  that  the  male 
alone  has  the  testicles,  and  only  upon  him  could  the  statute  be 
violated  by  castration;  but  will  that  difference,  or  any  other 
difference  in  the  private  parts  of  the  two  sexes,  warrant  a  con- 
struction of  these  terms,  either  to  the  effect  that  the  female  has 
no  private  parts,  or  that  they  are  less  sacred  than  those  of  the 


360  SPECIFIC   CRIMES. 

male?  Each  sex  has  private  parts  appropriate  to  its  own  functions; 
this  we  know  as  a  matter  of  fact,  and  cannot  ignore  it  in  explor- 
ing legislative  intention.  It  would  be  simple  nonsense  for  us  to 
hold  that  in  contemplation  of  law  a  female  has  no  private  parts. 
And  why  should  we  conclude  that,  having  them,  they  are  less 
protected  by  law  against  being  injured,  wounded  or  disfigured 
than  those  of  the  male?  Whether  for  the  sake  of  utility  or  ap- 
pearance, hers  are  as  much  within  the  letter  and  spirit  of  the 
statute  as  his.  There  is  no  better  reason  for  protecting  by  penal- 
ties the  genital  organs  of  a  man  than  those  of  a  woman.  We 
think  they  are  both  equally  included  in  the  section  of  the 
code  we  are  construing. 

2.  In  alleging  that  the  person  injured  was  a  female,  the  in- 
dictment by  necessary  implication  negatives  castration.    No  in- 
jury could  be  committed  upon  a  woman  which  would  amount  to 
castration. 

3.  The  indictment  was  not  bad  because  the  nature  and  char- 
acter of  the  injury  were  not  more  particularly  described.     An 
indictment  is  sufficient  which  describes  the  offence  in  the  lan- 
guage of  the  code,  or  so  plainly  as  to  be  easily  understood  by  the 
jury.     Code,  sec.  4626.    Here  the  indictment  used  the  very 
words  of  the  code  in  stating  the  offence,  and  setting  forth  the 
acts  constituting  it. 

What  we  have  said  disposes  of  the  case,  and  the  result  is  that 
the  court  did  not  err,  but  decided  correctly,  in  sustaining  the 
indictment  and  overruling  the  demurrer. 

4.  We  deny  the  motion  to  dismiss  the  writ  of  error  because  the 
evidence  was  not  brought  up.  The  sole  error  alleged  was  in  over- 
ruling the  demurrer.    The  evidence  could  be  of  no  use  in  review- 
ing the  judgment  disposing  of  the  demurrer,  and  hence  if  found 
in  the  record  here,  would   be   a   mere  excrescence  and  encum- 
brance.  The  irrelevant,  if  felt  at  all,  is  always  in  the  way.     To 
have  to  think  of  it  is  a  needless  tax  upon  attention.   It  is  best  for 
the  record  to  contain  no  superfluous  matter,  and  if  any,  the  less 
the  better. 

Judgment  affirmed. 

Chick  v.  State,  7  Humph.  (Tenn.)  161;  Slattery  v.  State,  41  Texas  619; 
People  v.  Demasters,  105  Cal.  669;  Bowers  v.  State,  24  Tex.  App.  542; 


PEOPLE  V.   LEE   KONG.  361 

State  v.  MaFoo,  110  Mo.  7,  19  S.  W.  222;  State  v.  Brown,  60  Mo.  141; 
Godfrey  v.  State,  63  N.  Y.  207;  High  v.  State,  26  Tex.  App.  545;  State  v. 
Cody,  18  Or.  506;  People  v.  Wright,  93  Cal.  564;  State  v.  Alley,  3 
Heisk.Tenn.  8;  Clark,  p.  182;  Wharton,  Sees.  581,  583;  Bishop  II.,  Sees. 
1001-1008;  Bishop  I.,  Sec.  547;  Hawley  &  McGregor,  p.  167. 

NOTE. — Some  Jurisdictions  require  a  specific  intent  to  disfigure. 

Minn.  Stat.  1894,  Sec.  6462;  N.  Y.  Penal  Code,  Sec.  206;  State  v.  Jones, 
70  la.  505;  State  v.  Hair,  37  Minn.  351;  State  v.  Cody.  18  Or.  506;  People 
v.  Wright,  93  Cal.  564;  Clark,  p.  183;  Hawley  &  McGregor,  p.  168. 

NOTE. — In  some  Jurisdictions,  if  the  party  so  far  recovers  by  the  time 
of  trial  that  there  is  no  longer  any  disfigurement  or  disability,  no  con- 
viction can  be  had. 

Minn.  Stat.  1894,  Sec.  6466;  N.  Y.  Penal  Code,  Sec.  210. 

Contra.— Slattery  v.  State,  41  Tex.  619. 

NOTE. — Maiming  to  escape  performance  of  duty,  or  to  excite  sympa- 
thy in  order  to  secure  alms,  are  felonies  in  some  States. 

Minn.  Stat.  1894,  Sees.  6463,  6464;  N.  Y.  Penal  Code,  Sees.  207,  208. 


c. 
Assault. 

An  assault  is  an  attempt  with  force  and  violence  to  in- 
flict corporal  injury  upon  another,  accompanied  with  the 
apparent  means  to  carry  the  attempt  into  effect. 

PEOPLE  v.  LEE  KONG. 

Supreme  Court  of  California,  1892. 
95  Cal.  666;  30  Pac.  800. 

GABOUTTE,  J.  Appellant  was  convicted  of  the  crime  of  an  as- 
sault with  intent  to  commit  murder,  and  now  prosecutes  this 
appeal,  insisting  that  the  evidence  is  insufficient  to  support  the 
verdict. 

The  facts  of  the  case  are  novel  in  the  extreme,  and  when  ap- 
plied to  principles  of  criminal  law,  a  question  arises  for  deter- 
mination upon  which  counsel  have  cited  no  precedent. 

A  policeman  secretly  bored  a  hole  in  the  roof  of  appellant's 
building,  for  the  purpose  of  determining,  by  a  view  from  that 


362  SPECIFIC   CRIMES. 

point  of  observation,  whether  or  not  he  was  conducting  therein 
a  gambling  or  lottery  game.  This  fact  came  to  the  knowledge  of 
appellant,  and  upon  a  certain  night,  believing  that  the  police- 
man was  upon  the  roof  at  the  contemplated  point  of  observation, 
he  fired  his  pistol  at  the  spot.  He  shot  in  no  fright,  and  his  aim 
was  good,  for  the  bullet  passed  through  the  roof  at  the  point  in- 
tended; but  very  fortunately  for  the  officer  of  the  law,  at  the 
moment  of  attack  he  was  upon  the  roof  at  a  different  spot,  view- 
ing the  scene  of  action,  and  thus  no  substantial  results  followed 
from  appellant's  fire. 

The  intent  to  kill  is  quite  apparent  from  the  evidence,  and  the 
single  question  is  presented,  Do  the  facts  stated  constitute  an  as- 
sault? Our  criminal  code  defines  an  assault  to  be  "an  unlawful 
attempt,  coupled  with  a  present  ability,  to  commit  a  violent  in- 
jury upon  the  person  of  another."  It  will  thus  be  seen  that  to 
constitute  an  assault  two  elements  are  necessary,  and  the  absence 
of  either  is  fatal  to  the  charge.  There  must  be  an  unlawful  at- 
tempt, and  there  must  be  a  present  ability,  to  inflict  the  injury. 
In  this  case  it  is  plain  that  the  appellant  made  an  attempt  to  kill 
the  officer.  It  is  equally  plain  that  this  attempt  was  an  unlawful 
one.  For  the  intent  to  kill  was  present  in  his  mind  at  the  time  he 
fired  the  shot,  and  if  death  had  been  the  result,  under  the  facts 
as  disclosed,  there  was  no  legal  justification  to  avail  him.  The 
fact  that  the  officer  was  not  at  the  spot  where  the  attacking  party 
imagined  he  was,  and  where  the  bullet  pierced  the  roof,  renders 
it  no  less  an  attempt  to  kill.  It  is  a  well-settled  principle  of 
criminal  law  in  this  country,  that  where  the  criminal  result  of  an 
attempt  is  not  accomplished  simply  because  of  an  obstruction  in 
the  way  of  the  thing  to  be  operated  upon,  and  these  facts  are  un- 
known to  the  aggressor  at  the  time,  the  criminal  attempt  is  com- 
mitted. Thus  an  attempt  to  pick  one's  pocket  or  to  steal  from 
his  person,  when  he  has  nothing  in  his  pocket  or  on  his  person, 
completes  the  offence  to  the  same  degree  as  if  he  had  money  or 
other  personal  property  which  could  be  the  subject  of  larceny. 
(State  v.  Wilson,  30  Conn.  500;  Commonwealth  v.  McDonald,  5 
Cush.  365;  People  v.  Jones,  46  Mich.  441;  People  v.  Moran,  123 
N.  Y.  254.) 

Having  determined  that  appellant  was  guilty  of  an  unlawful 
attempt  to  kill,  was  such  attempt  coupled  with  the  present 


PEOPLE  V.   LEE   KONG.  363 

ability  to  accomplish  the  deed?  In  the  case  of  People  v.  Yslas, 
27  Cal.  633,  this  court  said:  "The  common-law  definition  of  an 
assault  is  substantially  the  same  ag  that  found  in  our  statute." 
Conceding  such  to  be  the  fact,  we  cannot  indorse  those  authori- 
ties, principally  English,  which  hold  that  an  assault  may  be  com- 
mitted by  a  person  pointing  in  a  threatening  manner  an  unloaded 
gun  at  another;  and  this,  too,  regardless  of  the  fact  whether  the 
party  holding  the  gun  thought  it  was  loaded,"  or  whether  the 
party  at  whom  it  was  menacingly  pointed  was  thereby  placed  in 
great  fear.  Under  our  statute  it  cannot  be  said  that  a  person  with 
an  unloaded  gun  would  have  the  present  ability  to  inflict  an  in- 
jury upon  another  many  yards  distant,  however  apparent  and  un- 
lawful his  attempt  to  do  so  might  be.  It  was  held  in  the  case  of 
State  v.  Swails,  8  Ind.  722,  that  there  was  no  assault  to  commit 
murder  where  A  fires  a  gun  at  B  at  a  distance  of  forty  feet,  with 
intent  to  murder  him,  if  the  gun  is  in  fact  loaded  with  powder 
and  a  slight  cotton  wad,  although  A  believes  it  to  be  loaded  with 
powder  and  ball.  The  later  Indiana  cases  support  this  rule, 
although  in  Kinkle  v.  State,  32  Ind.  230,  the  court,  in  speaking 
of  the  Swail's  case,  said:  "But  if  the  case  is  to  be  understood  as 
laying  down  the  broad  proposition  that  to  constitute  an  assault 
*  *  *  with  intent  to  commit  felony  the  intent  and  the  pres- 
ent ability  to  execute  must  necessarily  be  conjoined,  it  does  not 
command  our  assent  or  approval."  In  the  face  of  the  fact  that 
the  statute  of  this  State  in  terms  requires  that  in  order  to  con- 
stitute an  assault  the  unlawful  attempt  and  present  ability  must 
be  conjoined,  Kinkle  v.  State,  32  Ind.  230,  can  have  no  weight 
here.  In  State  v.  Napper,  6  Nev.  115,  the  court  reversed  the 
judgment  upon  the  ground  that  the  people  failed  to  prove  that 
the  pistol  with  which  the  assault  was  alleged  to  have  been  made 
was  loaded,  and  that  consequently  there  was  no  proof  that  the 
defendant  had  the  present  ability  to  inflict  the  injury. 

It  is  not  the  purpose  of  the  court  to  draw  nice  distinctions  be- 
tween an  attempt  to  commit  an  offence  and  an  assault  with  intent 
to  commit  the  offence,  for  such  distinctions  could  only  have  the 
effect  to  favor  the  escape  of  criminals  from  their  just  deservings. 
And  in  view  of  the  fact  that  all  assaults  to  commit  felonies  can 
be  prosecuted  as  attempts,  we  can  see  no  object  in  carrying  the 
discussion  of  the  subject  to  any  greater  lengths. 


364  SPECIFIC  CRIMES. 

In  this  case  the  appellant  had  the  present  ability  to  inflict  the 
injury.  He  knew  the  officer  was  upon  the  roof,  and  knowing  that 
fact  he  fired  through  the  roof  with  the  full  determination  of  kill- 
ing him.  The  fact  that  he  was  mistaken  in  judgment  as  to  the 
exact  spot  where  his  intended  victim  was  located  is  immaterial. 
That  the  shot  did  not  fulfill  the  mission  intended  was  not  at- 
tributable to  forbearance  or  kindness  of  heart  upon  defendant's 
part;  neither  did  the  officer  escape  by  reason  of  the  fact  of  his 
being  so  far  distant  that  the  deadly  missile  could  do  him  no  harm. 
He  was  sufficiently  near  to  be  killed  from  a  bullet  from  the 
pistol,  and  his  antagonist  fired  with  the  intent  of  killing  him. 
Appellant's  mistake  as  to  the  policeman's  exact  location  upon 
the  roof  affords  no  excuse  for  his  act,  and  causes  the  act  to  be  no 
less  an  assault.  These  acts  disclose  an  assault  to  murder  as  fully 
as  though  a  person  should  fire  into  a  house  with  the  intention  of 
killing  the  occupant,  who  fortunately  escaped  the  range  of  the 
bullet  (See  Cowley  v.  State,  10  Lea,  282.)  The  fact  that  the 
shots  were  directed  indiscriminately  into  the  house  rather  than 
that  the  intended  murderer  calculated  that  the  occupant  was 
located  at  a  particular  spot,  and  then  trained  his  fire  to  that  point, 
could  not  affect  the  question.  The  assault  would  be  complete  and 
entire  in  either  case.  If  a  man  intending  murder,  being  in  dark- 
ness and  guided  by  sound  only,  should  fire,  and  the  bullet  should 
pierce  the  spot  where  the  party  was  supposed  to  be,  but  by  a  mis- 
take in  hearing  the  intended  victim  was  not  at  the  point  of 
danger,  but  some  distance  therefrom,  and  yet  within  reach  of  the 
pistol-ball,  the  crime  of  assault  to  commit  murder  would  be  made 
out;  for  the  unlawful  attempt  and  the  present  ability  are  found 
coupled  together.  If  appellant's  aim  had  not  been  good,  or  if' 
through  fright  or  accident  when  pointing  the  weapon  or  pulling 
the  trigger,  or  if  the  ball  had  been  deflected  in  its  course  from  the 
intended  point  of  attack,  and  by  reason  of  the  occurrence  of  any 
one  of  these  contingencies  the  party  had  been  shot  and  killed,  a 
murder  would  have  been  committed.  Such  being  the  fact,  the 
assault  is  established. 

The  fact  of  itself  that  the  policeman  was  two  feet  or  ten  feet 
from  the  spot  where  the  fire  was  directed,  or  that  he  was  at  the 
right  hand  or  at  the  left  hand  or  behind  the  defendant  at  the 
time  the  shot  was  fired,  is  immaterial  upon  this  question.  That 


PEOPLE  V.   LEE   KONU.  365 

element  of  the  case  does  not  go  to  the  question  of  present  ability, 
but  pertains  to  the  unlawful  attempt. 
Let  the  judgment  and  order  be  affirmed. 

PATEKSON,  J.,  concurred. 

HAKKISON,  J.,  concurring.  I  concur  in  the  judgment,  upon 
the  ground  that  upon  the  evidence  before  them  the  jury  have 
determined  that  the  unlawful  attempt  of  the  defendant  was 
coupled  with  a  present  ability — that  is,  an  ability  by  the  means 
then  employed  by  him  in  furtherance  of  such  attempt — to  com- 
mit murder  upon  the  policeman. 

Smith  v.  State,  39  Miss.  521;  State  v.  Mooney,  Phil.  (N.  C.)  434;  People 
v.  Yslas,  27  Cal.  631;  Balkum  v.  State,  40  Ala.  671;  State  v.  Davis,  1 
Ired.  125;  State  v.  Crow,  1  Ired.  375;  People  v.  Lilley,  43  Mich.  521; 
Chapman  v.  State,  78  Ala.  463;  Johnson  v.  State,  35  Ala.  363;  Clarke  v. 
State,  89  Ga.  768;  Carr  v.  State,  20  L.  R.  A.  863;  People  v.  Foss,  80  Mich. 
559,  8  L.  R.  A.  47;  State  v.  McAfee,  107  N.  C.  812,  10  L.  R.  A.  607;  Com. 
v.  White,  110  Mass.  407;  Com.  v.  Stratton,  114  Mass.  303;  Clark,  pp.  198, 
199;  Bishop  II.,  Sees.  22-62;  Wharton,  Sec.  603  et  seq;  Hawley  &  Mc- 
Gregor, p.  297;  The  Penal  Code  of  Pa.;  Shields,  vol.  I.,  190,  219,  243, 
306,  407,  444-462,  499. 

NOTE.— Consent  is  a  defence  to  the  assault,  unless  the  assault  and 
battery  would  constitute  a  breach  of  the  peace. 

Com.  v,  Collberg,  119  Mass.  350;  State  v.  Hartigan,  32  Vt.  607;  State 
v.  Bagan,  41  Minn.  285;  Clark,  p.  216;  Wharton,  Sec.  636;  Hawley  &  Mc- 
Gregor, p.  40. 

NOTE. — Aggravated  assaults  are  those  accompanied  with  circum- 
stances of  aggravation,  such  as  assaults  with  intent  to  kill,  to  commit  rape, 
and  to  inflict  serious  bodily  injury.  To  constitute  these  crimes  a  specific 
intent  is  essential. 

Though  these  crimes  are  only  assaults  at  common  law,  they  are  in 
some  States  made  distinct  crimes  by  statute,  and  in  others,  the  intent 
to  commit  a  felony  being  present  makes  the  degree  of  the  assault 
higher. 

N.  Y.  Penal  Code,  Sec.  217;  Minn.  Stat.  1894,  Sec.  6471;  Clark,  p.202. 

NOTE. — When  one  assaults  another  with  intent  to  kill  or  commit  a 
felony,  with  loaded  firearm  or  other  deadly  weapon,  or  administers,  or 
causes  to  be  administered  to  him  a  poisonous  drug,  it  is  an  assault  in 
the  first  degree. 

Minn.  Stat.  1894,  Sec.  6471;  State  v.  Dineen,  10  Minn.  407;  Boyd  v. 
State,  4  Minn.  321;  N.  Y.  Penal  Code,  Sec.  217. 


366  SPECIFIC   CRIMES. 

NOTE.— When  one  causes  any  such  act  to  be  performed  or  drug  to  be 
administered,  not  for  the  purpose  of  death  or  accomplishment  of  a  fel- 
ony, It  Is  assault  In  the  second  degree. 

Minn.  Stat.  1894,  Sec.  6472. 

NOTE.— Any  other  assault  Is  assault  In  the  third  degree. 
Minn.  Stat.  1894,  Sec.  6473. 

NOTE.— Justifiable  and  excusable  assaults  and  batteries.  One  com- 
mits a  Justifiable  assault  who  opposes  violence  with  force,  and  the  limit 
to  his  privilege  to  do  this  is  that  he  must  not  apply  a  force  not  called 
for  In  self  defence  (a).  Nor  use  violent  force  In  repelling  slight 
force  (b).  Nor  take  life  unless  life  and  limb  are  in  danger  (c).  And 
by  retreating  he  cannot  avoid  such  extremity  (d). 

(a)  Fisher  v.  Bridges,  4  Blackf.  518;  Philbrick  v.  Foster,  4  Ind.  442; 
Dole  v.  Erskine,  35  N.  H.  503;  Adams  v.  Waggoner,  33  Ind.  531. 

(b)  State  v.  Wood,  1  Bay.  351;  Hazel  v.  Clark,  3  Har.  22  (Del.). 

(c)  Grainger  v.  State,  5  Yerg.  459;  U.  S.  v.  Wiltberger,  3  Wash.  C.  C. 
515. 

(d)  Creek  v.  State,  24  Ind.  151;  Oliver  v.  State,  17  Ala.  587;  Minn. 
Stat.  1894,  Sec.  6477. 

Clark,  p.  213;  Wharton,  Sec.  628;  Hawley  &  McGregor,  p.  135. 

NOTE.— A  man  may  defend  his  family  with  the  same  force  that  he 
may  himself  (a),  and  his  real  property  (b)  and  personal  (c)  with  an  equal 
force;  save  that  he  cannot  take  life  in  defence  of  property  aside  from 
his  home.  Such  acts  of  defence  are  justifiable  though  under  other  cir- 
cumstances they  would  constitute  assaults  and  batteries. 

(a)  Com.  v.  Malone,  114  Mass.  295;  Patten  v.  People,  18  Mich.  313; 
State  v.  Greer,  22  W.  Va.  800-819;  Wilson  v.  State,  30  Fla.  234. 

(b)  Parsons  v.  Brown,  15  Barb.  590;  Drysdale  v.  State,  83  Ga.  744. 

(c)  Souther  v.  State,  18  Tex.  App.  352;  Anderson  v.  State,  6  Bax.  608; 
Filkins  v.  People,  69  N.  Y.  101;  Com.  v.  Donahue,  148  Mass.  529;  People 
v.  Pearl,  76  Mich.  207;  State  v.  Black,  109  N.  C.  856;  Clark,  pp.  213,  214; 
Wharton,  Sec.  621;  Hawley  &  McGregor,  p.  135. 


CLEMENTS  V.   STATE   OF   GEORGIA.  367 

d. 

Robbery. 

"  Robbery  is  larceny  from  the  person  or  personal  presence 
by  force  and  violence,  or  putting  in  fear." 

(1)  Ihe  taking  must  be  from  the  person  or  personal  presence. 

CLEMENTS  v.  STATE  OF  GEORGIA. 

Supreme  Court  of  Georgia,  1890. 
84  Ga.  660;  11  S.  B.  505. 

SIMMONS,  J.  1.  William  and  Charles  Clements  were  indicted^ 
tried  and  convicted  of  robbery.  They  made  a  motion  for  a  new 
trial  upon  several  grounds,  which  was  overruled  by  the  court,  and 
they  excepted.  The  evidence  as  to  the  robbery  was,  in  sub- 
stance, as  follows :  Between  seven  and  eight  o'clock  on  the  even- 
ing of  January  19th,  1888,  Bird  went  into  his  smoke-house  to 
weigh  out  rations  for  his  hands.  While  he  was  in  there,  a  man 
ran  up  and  said  that  the  first  one  who  put  his  head  out,  he  would 
shoot  it  off;  said  that  they  were  after  a  murderer  that  had  killed 
four  men  in  Dooly  county,  and  were  told  he  was  there.  Bird 
asked  what  was  his  name,  and  the  man  said  he  did  not  know  but 
the  sheriff  did,  and  that  the  place  was  surrounded.  Bird  looked 
through  the  crack,  the  room  being  built  of  logs,  and  the  man 
was  standing  with  his  face  toward  Bird,  who  could  not  tell  any- 
thing about  him  only  he  was  a  stout  man,  and  he  stood  in  a 
shooting  position.  After  a  little  while,  the  man  disappeared, 
"kinder  backed  off,"  and  Bird  waited  until  he  thought  it  was 
time  for  a  man  to  come  from  anywhere  around  in  fifty  or  sixty 
yards,  and  he  did  not  come ;  and  Bird  said,  "I  am  going  out,  if 
you  do  shoot,"  and  went  out.  When  he  got  to  the  back  door,  he 
met  his  wife  coming  in  from  the  kitchen,  and  she  asked  him  if  he 
knew  his  chest  was  gone,  and  he  told  her  no.  Before  that  man 
came  up,  a  gun  was  fired  off.  The  chest  was  right  under  the  bed, 
which  stood  at  the  front  door  of  Bird's  dwelling-house.  There 


368  SPECIFIC   CRIMES. 

was  a  piazza  running  along  by  the  front  door,  and  the  chest  had 
been  taken  out  by  that  door.  The  smoke-house  was  "sorter 
back"  of  that  house.  The  bed  was  from  one  and  a  half  to  two 
feet  from  the  front  piazza.  The  chest  could  have  been  seen 
under  the  bedstead.  It  was  under  the  bed  when  Bird  went  to 
the  smoke-house.  It  contained,  before  it  was  broken  open,  sev- 
eral hundred  dollars  in  currency,  land  deeds  and  papers.  He  was 
alarmed  or  dazed  by  the  statement  made  while  he  was  in  the 
smoke-house,  by  the  man  on  the  outside,  who  was  standing 
within  eight  feet  with  his  gun  in  a  shooting  position,  so  he  could 
not  put  his  head  out.  The  smoke-house  was  about  fifteen  steps 
from  the  dwelling-house.  Nobody  said  anything  to  him  about 
taking  his  money,  and  nobody  took  anything  from  his  person. 
The  chest  was  not  very  heavy.  It  was  about  18  inches  long  and 
about  14  inches  high.  It  was  generally  known  that  he  kept  his 
valuables  in  that  chest.  There  was  other  evidence  tending  to 
show  that  the  plaintiffs  in  error  were  the  guilty  parties;  but  it  is 
unnecessary  to  detail  it  here,  as  the  main  question  is  whether, 
under  the  facts  set  out,  the  offence  was  robbery. 

Under  the  above  stated  facts,  the  court  charged  the  jury  as 
complained  of  in  the  3d  and  4th  grounds  of  the  motion  for  a  new 
trial,  which  is  alleged  by  the  plaintiffs  in  error  to  be  erroneous. 
These  grounds  are  as  follows :  3.  Because  the  court  erred  in  the 
following  charge  to  the  jury:  "In  order  to  convict  these  defend- 
ants, it  must  appear  that  the  goods  alleged  to  have  been  taken 
were  taken  from  the  person  of  the  owner.  By  this  you  are  not  to 
understand  that  the  goods  must  have  been  in  the  hands  of, 
or  attached  to,  the  person  of  the  owner.  All  his  prop- 
erty, so  far  as  cases  of  this  character  are  concerned,  is, 
in  contemplation  of  law,  upon  the  person  of  the  owner,  which 
is,  at  the  time  of  taking,  in  the  immediate  presence  of  the  owner, 
or  is  so  near  at  hand,  or  stored  in  such  position,  that,  at  the  time 
of  taking,  it  is  under  the  immediate  personal  protection  of  the 
owner.  If  the  goods  are  in  that  condition,  then  they  are,  within 
the  contemplation  of  the  law,  upon  the  person  of  the  owner."  4. 
Because  the  court  gave  the  following  charge :  "That  goods  stored 
in  the. dwelling-house  are  deemed  to  be  upon  the  person  of  the 
owner,  in  contemplation  of  law,  so  far  as  cases  of  this  character 
are  concerned,  when  the  owner  thereof  is  either  personally 


CLEMENTS  V.   STATE   OF   GEORGIA.  369 

therein,  that  is,  in  his  dwelling-house,  or  in  any  house  so  nearly 
adjacent  thereto  as  that  the  whole  is  under  his  immediate  per- 
sonal dominion  and  control.  If  you  shall  find  from  this  evidence 
that  in  the  county  of  Coffee,  upon  the  day  named  in  the  indict- 
ment, the  goods  alleged  to  have  been  stolen  were  the  property  of 
Wiley  Bird;  that  they  were  of  some  value;  that  they  were  stored 
in  the  dwelling-house  of  the  owner;  that  the  owner  thereof  was 
present  therein,  or  in  a  house  so  nearly  adjacent  thereto  as  that 
the  same  was  under  his  immediate  protection,  dominion  and  con- 
trol; that  the  defendants,  acting  in  concert,  intending  by  violence 
or  intimidation  to  take  and  carry  away  the  goods  described  in 
the  indictment,  and  by  threats  of  violence  putting  him  in  fear 
within  the  meaning  of  that  term  as  the  court  has  denned  it  to 
you,  and  by  this  means  overcame  his  will;  and  that  while  under 
the  influence  of  such  fears  the  other  entered  the  dwelling-house 
of  the  owner  and  took  and  carried  away  the  goods  described,  with 
the  intent  to  steal  the  same,  then  it  would  be  your  duty  to  con- 
vict them,  even  though  it  should  appear  that  at  the  exact  moment 
of  taking  the  owner  had  no  knowledge  that  his  goods  were  being 
taken  or  of  the  purpose  of  the  defendants  in  their  putting  him  in 
fear."  We  do  not  think  the  court  erred  in  giving  the  charges 
complained  of,  under  the  facts  of  this  case.  It  is  not  necessary 
in  a  case  of  robbery  to  prove  that  the  property  was  actually 
taken  from  the  person  of  the  owner,  but  it  is  sufficient  if  it  is 
taken  in  his  presence.  Crews  and  Crenshaw  v.  State,  3  Coldw. 
350;  State  v.  Jenkins,  36  Mo.  372;  2  Russell  on  Crimes,  p.  106, 
107;  2  Roscoe  Crim.  Ev.  p.  935,  936.  In  the  present  case,  Bird, 
the  prosecutor,  was  in  his  smoke-house,  within  fifteen  steps  of 
the  dwelling-house  which  contained  the  chest.  All  the  property 
in  this  dwelling-house,  in  contemplation  of  law,  was  in  his  im- 
mediate possession  and  control.  He  was  found  by  the  defend- 
ants in  this  smoke-house,  and  was  prevented  by  threats  and 
intimidation  from  leaving  the  smoke-house  and  going  into  his 
dwelling-house.  He  was  kept  in  the  smoke-house  a  sufficient 
length  of  time  to  enable  some  of  the  defendants  to  enter  the 
dwelling-house  and  take  the  chest  therefrom.  Suppose  the  de- 
fendants had  found  Bird  on  the  front  steps  of  his  piazza  and  had 
carried  him  by  force  to  this  smoke-house  and  locked  him  therein, 
and  had  then  gone  back  to  his  house  and  stolen  his  chest;  could 
24 


370  SPECIFIC  CRIMES. 

it  be  said  that  the  taking  was  not  in  his  presence?  Suppose  they 
had  found  him  in  his  dining-room,  and  locking  him  therein,  had 
gone  to  the  front  room  and  taken  the  chest;  would  not  that  have 
been  in  his  presence?  Suppose  the  owner  of  cattle  is  out  in  the 
pasture  with  them,  when  a  man  comes  up  and  points  a  pistol  at 
him,  telling  him  to  stay  where  he  is.  At  the  same  time,  confed- 
erates of  the  aggressor  drive  the  cattle  off  from  another  part  of 
the  field.  Would  not  that  be  a  taking  in  the  presence  of  the 
owner?  See  2  East  P.  C.  707.  In  the  case  of  State  v.  Calhoun, 
lately  decided  by  the  Supreme  Court  of  Iowa,  the  accused  went 
into  the  dwelling-house  of  a  lady  and  into  the  room  where  she 
was,  and  by  violence  and  intimidation,  throwing  her  down  and 
tying  her,  extorted  information  as  to  where  her  valuables  were. 
Being  told  that  they  were  in  another  room,  he  left  her  tied  and 
went  into  the  other  room,  where  he  got  her  money  and  watch. 
This  was  held  to  be  a  taking  in  the  presence  of  the  owner,  not- 
withstanding it  occurred  in  a  different  part  of  the  house  from 
that  in  which  the  owner  was  tied.  72  Iowa,  432,  s.  c.  2  Am.  St. 
Rep.  252.  Bishop,  in  his  work  on  Criminal  Law,  vol.  2,  sec. 
1177,  says:  "The  meaning  of  this  legal  phrase  is,  not  that  the 
taking  must  necessarily  be  from  the  actual  contact  of  the  body, 
but  if  it  is  from  under  the  personal  protection  that  will  suffice. 
Within  this  doctrine,  the  person  may  be  deemed  to  protect  all 
things  belonging  to  the  individual,  within  a  distance,  not  easily 
defined,  over  which  the  influence  of  the  personal  presence  ex- 
tends." In  the  case  of  Merriman  v.  The  Hundred  of  Chippen- 
ham,  2  East  P.  C.  709,  it  was  held  that,  where  a  wagoner  was 
forcibly  stopped  in  the  highway  by  a  man  under  fraudulent  pre- 
tence that  his  goods  were  unlawfully  carried  for  want  of  a 
permit,  and  while  they  were  going  to  a  magistrate  to  obtain  the 
permit,  the  man's  confederates  took  away  the  goods,  this  was 
sufficient  proof  of  a  taking  to  constitute  robbery.  See  also  same 
case  quoted  in  3  Greenl.  Ev.  sec.  228.  So  we  think  that  where 
the  prosecutor  was  within  fifteen  steps  of  the  property  stolen, 
and  was  kept  away  by  threats  and  intimidation  by  one  of  the  de- 
fendants, while  the  other  stole  the  chest,  the  taking  was  in  the 
presence  of  the  prosecutor. 

2.  The  verdict  was  found  by  the  jury  upon  the  proper  count 
in  the  indictment,  and  the  evidence  authorized  the  finding. 

Judgment  affirmed. 


THOMAS  V.   THE   STATE.  371 

fctate  v.  Calhoun,  72  la.  432;  Hope  v.  People,  83  N.  Y.  418;  Brown  v. 
State,  33  Neb.  354;  Minn.  Stat  1894,  Sec.  6478;  Clark,  p.  284;  Bishop  II., 
Sec.  1156;  Wharton,  Sec.  874;  Hawley  &  McGregor,  p.  233. 


(2)  Force  and  violence  must  be  used  in  securing  possession  of  the 

property. 

THOMAS  v.  THE  STATE. 

Supreme  Court  of  Alabama,  1891. 
91  Ala.  34;  9  So.  81. 

MCCLELLAN,  J.  The  indictment  in  this  case  is  substantially  in 
the  form  prescribed  by  the  Code  for  the  offence  of  robbery,  and 
is  sufficient.  Code,  p.  276,  Form  76;  Chappel  v.  State,  52  Ala. 
359. 

The  evidence  on  the  trial  was  without  conflict,  to  the  effect 
that  the  possession  of  the  property,  the  subject-matter  of  the 
alleged  robbery,  was  obtained  from  the  prosecutor  by  artifice,, 
and  without  violence,  or  putting  in  fear;  and  that  after  the  pos- 
session had  been  thus  peaceably  obtained,  it  was  retained,  and 
the  property  carried  away,  by  putting  the  prosecutor  in  such 
fear  as  prevented  any  effort  on  his  part  to  regain  it.  The  bill  of 
exceptions  sets  forth  that  the  prosecutor  and  his  brother,  aged_ 
respectively  fifteen  and  thirteen  years,  the  former  having  a  gun, 
met  three  men,  including  the  defendant,  in  a  road  or  street  in  the 
suburbs  of  Birmingham.  "Two  of  the  men  passed  on,  while  the 
defendant  stopped,  and  engaged  in  conversation  with  Robert 
Yarborough  (the  prosecutor),  in  regard  to  purchasing  the  gun 
that  said  Robert  Yarborough  had  in  his  hand.  Said  Yarborough 
voluntarily  handed  the  gun  to  the  defendant  for  examination,  in 
obedience  to  the  request  of  the  defendant  to  be  allowed  to  ex- 
amine it;  and  the  said  defendant  conversed  with  said  Robert 
Yarborough  about  five  minutes  in  regard  to  the  gun,  inquiring 
how  the  said  gun  was  operated,  and  whether  it  was  loaded.  Being 
informed  that  the  gun  was  loaded,  the  defendant  then  stepped 
back  about  ten  steps,  and  said  to  Yarborough,  TRun,  or  I  will 
shoot  you,'  pointing  the  gun  at  him."  Yarborough  did  not  run, 


372  SPECIFIC   CRIMES. 

but  was  frightened,  and  backed  off  some  distance;  and  the  de- 
fendant then  ran  away  with  the  gun.  The  jury  found  the  defend- 
ant guilty  of  robbery,  and  he  was  adjudged  and  sentenced 
accordingly.  The  rulings  of  the  court  on  charges  requested  for 
the  defendant  were  to  the  effect,  that  these  facts  constituted  rob- 
bery; and  whether  they  did  or  not,  is  the  main  inquiry  arising  on 
this  appeal. 

The  authorities  are  well  nigh  uniform  to  the  position,  that  the 
violence,  or  putting  in  fear,  which  is  an  essential  element  of  the 
crime  of  robbery,  must  precede,  or  be  concomitant  with  the  act 
by  which  the  offender  acquires  the  possession  of  the  property. 
The  offence  is  against  both  the  person,  and  against  property.  In 
so  far  as  it  is  against  the  person,  it  consists  in  personal  violence, 
or  personal  intimidation.  In  so  far  as  it  is  against  property,  it 
consists  of  manucaption  animo  furandi.  If  there  be  violence,  or 
putting  in  fear,  however  aggravated,  without  a  taking  and  aspor- 
tation  of  property,  there  may  be  an  assault,  or  assault  and  bat- 
tery, or  an  assault  with  intent  to  rob,  but  no  robbery.  On  the 
other  hand,  if  there  be  a  taking  by  trick  or  contrivance,  and 
•carrying  away  with  felonious  intent,  but  no  violence,  or  putting 
in  fear,  as  a  means  of  the  caption  of  another's  property,  there  is 
A  larceny,  but  no  robbery.  Com.  v.  James,  1  Pick.  (Mass.)  375. 
The  three  essential  elements  of  the  offence  are,  felonious  intent, 
force,  or  putting  in  fear,  as  a  means  of  effectuating  the  intent, 
and,  by  that  means,  a  taking  and  carrying  away  of  the  property 
of  another  from  his  person,  or  in  his  presence.  In  the  nature  of 
things,  all  these  elements  must  concur  in  point  of  time,  else  the 
act  done  is  not  rounded  out  to  the  full  measure  of  the  capital 
felony.  If  force  is  relied  on  in  proof  of  the  charge,  it  must  be 
the  force  by  which  another  is  deprived  of,  and  the  offender  gains 
the  possession.  If  putting  in  fear  is  relied  on,  it  must  be  the  fear 
under  duress  of  which  the  possession  is  parted  with.  The  taking, 
as  it  has  been  expressed,  must  be  the  result  of  the  force  or  fear; 
and  force  or  fear  which  is  a  consequence,  and  not  the  means  of 
taking,  will  not  suffice.  "The  fear  of  physical  ill  must  come  be- 
fore the  relinquishment  of  the  property  to  the  thief,  and  not 
after;  else,  the  offence  is  not  robbery."  2  Bish.  Or.  Law,  sec. 
1175.  "It  may  also  be  observed,"  says  Archbold,  ''with  respect 
to  the  taking,  that  it  must  not,  as  it  should  seem,  precede  the 


THOMAS   V.  THE  STATE.  373 

violence,  or  putting  in  fear,  or  rather,  that  a  subsequent  violence, 
or  putting  in  fear,  will  not  make  a  precedent  taking,  effected 
clandestinely,  or  without  either  violence  or  putting  in  fear, 
amount  to  robbery."  2  Archbold  Or.  Pr.  &  PI.  p.  1289;  also,  2 
.Russell  on  Crimes,  p.  *108;  1  Hale  P.  C.  534.  "It  must  appear," 
says  Roscoe,  "that  the  property  was  taken  while  the  party  was 
under  the  influence  of  the  fear;  for,  if  the  property  be  taken 
first,  and  the  menaces  or  threats  inducing  the  fear  be  used  after- 
wards, it  is  not  robbery."  Roscoe's  Grim.  Ev.  p.  924.  And  Mr, 
Wharton  recognizes  the  same  doctrine.  1  Whar.  Or.  Law,, 
sec.  850. 

The  adjudged  cases  fully  support  these  texts.  In  an  early 
case,  the  facts  were,  that  the  prisoner  desired  the  prosecutor  to 
open  a  gate  for  him,  and,  while  he  was  so  doing,  the  prisoner  took 
his  purse.  The  prosecutor,  seeing  it  in  the  prisoner's  hand,  de- 
manded it,  when  the  prisoner  answered:  "Villain,  if  thou 
speakest  of  thy  purse,  I  will  pluck  thy  house  over  thine  ears,  and 
drive  thee  out  of  the  country,  as  I  did  John  Somers,"  and  then 
went  away  with  the  purse;  and  because  he  did  not  take  it  with, 
violence,  or  put  the  prosecutor  in  fear,  it  was  ruled  to  be  larceny, 
and  no  robbery,  for  the  words  of  menace  were  used  after  the- 
taking  of  the  purse.  Rex  v.  Harman,  1  Hale's  P.  C.  534.  See, 
also,  Rex  v.  Grey,  2  East's  P.  C.  708;  and  Rex  v.  Gnosil,  1  Car. 
&  P.  304,  in  which  it  is  said  by  Garrow,  B. :  "To  constitute  the 
crime  of  highway  robbery,  the  force  used  must  be  either  before, 
or  at  the  time  of  the  taking."  In  the  case  of  Shinn  v.  State,  64 
Ind.  13,  it  appeared  that  an  accomplice  of  the  defendant  snatched 
money  from  the  prosecutor,  and  handed  it  to  the  prisoner,  who 
attempted  to  make  off  with  it,  but  was  pursued  and  overtaken  by 
the  prosecutor,  when  a  tussle  ensued  between  all  three  of  them 
for  the  possession  of  the  money.  Mere  snatching  property  from 
another  is  by  all  the  authorities  not  robbery.  Hence,  in  this 
case,  the  force  had  to  be  predicated  of  the  tussle,  which  occurred 
after  the  defendant  had  acquired  the  possession.  It  was  held, 
that  force  thus  used  subsequent  to  the  taking,  in  an  effort  to  re- 
tain the  wrongful  possession  acquired  by  snatching,  was  not  such 
force  as  is  essential  to  the  crime  of  robbery.  The  court  said: 
"The  evidence  tended  to  show  the  fraudulent  and  felonious  ob- 
taining of  money  from  the  prosecuting  witness  by  means  of  a 


374  SPECIFIC  CRIMES. 

previously  arranged  trick  or  contrivance,  but  did  not  sustain  the 
charge  of  robbery  contained  in  the  indictment;"  citing  Huber 
v.  State,  57  Ind.  341;  and  to  like  effect  is  the  case  of  Hanson  v. 
State,  43  Ohio  St  376. 

"Robbery,"  says  the  Supreme  Court  of  Arkansas,  "is  defined 
to  be  a  felonious  taking  of  money  or  goods  from  the  person  of 
another,  or  in  his  presence,  against  his  will,  by  violence,  or  put- 
ting him  in  fear.  And  this  violence  must  precede  or  accompany 
the  stealing."  Clary  et  al.  v.  State,  33  Ark.  561.  And  the  same 
doctrine  is  held  substantially  in  the  following  cases:  People  v. 
McGinty,  24  Hun,  62;  State  v.  Jenkins,  Mo.  372;  State  v.  Deal, 
64  K  C.  270;  State  v.  John,  69  Amer.  Dec.  777;  State  v.  Mc- 
Cune,  70  Amer.  Dec.  176,  notes  178. 

We  have  discussed  this  point  more  at  large  than  we  should 
otherwise  have  done,  because  we  are  constrained,  in  following 
the  very  numerous  authorities  that  have  been  cited,  there  being 
none  outside  of  this  State  to  the  contrary,  it  is  believed,  support- 
ing, as  they  clearly  do,  the  sound  doctrine  in  this  connection,  to 
overrule  a  case  decided  by  this  court  in  1875,  in  which  it  was 
held  that  one  having  the  actual  possession  of  the  property  of 
another,  might  yet  be  guilty  of  robbery  in  respect  to  it,  by  using 
violence  on  the  person  of  the  owner,  not  to  take  possession,  but 
to  make  off  with  the  property.  The  case  referred  to  is  that  of 
James  v.  State,  53  Ala.  380.  The  facts  were,  that  the  defendant 
and  one  Hardy  were  traveling  together  on  foot,  and  Hardy 
handed  certain  articles  contained  in  a  bag  to  defendant,  to  be 
carried  for  him.  They  proceeded  some  distance  in  this  way,  when 
the  defendant  "took  a  step  backwards,  and  struck  witness  behind 
on  his  neck,  knocking  him  down  and  insensible;"  and  when 
Hardy  recovered  consciousness,  the  defendant  was  gone,  and  also 
the  articles,  which  he  had  been  carrying  for  Hardy.  Manning, 
J.  delivering  the  opinion,  said:  "Up  to  the  time  of  the  blow, 
there  was  no  appropriation  of  these  articles  by  the  defendant,  or 
denial  of  the  property  of  witness  in  them.  They  were  in  the  pres- 
ence, and  constructively  in  the  possession  of  witness.  The  de- 
fendant may  have  well  supposed  he  could  not  get  away  with 
them,  they  being  heavy,  without  first  knocking  down  and  dis- 
abling their  owner.  And  although  they  were  in  the  hands  of  the 
defendant,  carried  by  him  at  the  request  of  the  owner,  they  were 


THOMAS  V.   THE   STATE.  375 

not  taken  from  him,  he  being  constructively  in  possession,  and 
they  being  in  his  presence,  as  his  property,  until  he  was  stricken 
by  defendant  and  knocked  down.  The  violence  was  not  done 
after  the  goods  were  taken  away,  but  they  were  taken  away  after 
and  by  means  of  the  violence  to  the  person  of  the  owner."  No 
authorities  are  cited  to  these  propositions;  and  it  is  believed  none 
can  be  found  in  the  books.  The  chief  fault  of  the  opinion  lies  in 
the  assumption,  that  the  crime  of  robbery  may  be  committed 
against  such  constructive  possession  as  a  man  has  through  his 
agent.  We  do  not  so  understand  the  law.  The  offence  is  against 
the  actual  possession,  in  the  very  nature  of  things.  The  person 
offended  against  must  have  either  the  manucaption  of  the  prop- 
erty, or  it  must  at  least  be  in  his  presence,  and  under  his  direct 
physical,  personal  control;  and  the  taking,  which  is  an  essential 
element  of  the  crime,  must  amount  to  the  transfer  of  this  manu- 
caption or  personal  control,  by  force  or  through  fear,  from  the 
owner  into  the  criminal.  How  is  it  possible  for  this  to  be  done 
when  this  actual  possession  is  already  in  the  offender?  How  can 
he  take  from  the  owner  that  which  he  already  had,  and  the  owner 
has  not  ?  An  English  case  will  serve  to  illustrate  the  point.  It  is 
very  like  the  James  Case  in  respect  to  the  application  of  the  prin- 
ciple we  are  considering.  "A.  and  B.  were  walking  together,  B. 
carrying  A.'s  bundle,  when  C.  and  D.  came  up  and  assaulted  A. 

B.  threw  down  the  bundle,  and  ran  to  the  assistance  of  A.,  when 

C.  took  it  up  and  made  off  with  it.     C.  and  D.  were  indicted  for 
robbery,  A.  being  the  prosecutor:   Held,  that  they  could  not  be 
convicted  of  robbery,  as  the  thing  stolen  was  not  in  the  personal  - 
custody  of  the  prosecutor;"  Vaughan,  B.,  observing,  that  "the 
indictment  was  not  sustainable,  as  the  bundle  was  in  the  posses- 
sion of  another  person  at  the  time  when  the  assault  was  com- 
mitted." Rex  v.  Fallows  et  al.,  5  Car.  &  P.  508.  This  case  mani- 
festly proceeded  on  the  ground,  that  the  force  was  applied  to  A., 
while  B.  had  the  actual  possession  of  the  property,  and  that  no 
force  or  putting  in  fear  was  resorted  to  to  gain  possession  of  the 
bundle  after  B.  had  thrown  it  down.  We  do  not  doubt  that,  after 
its  relinquishment  by  B.,  if  left  in  the  presence  of  A.,  the  latter 
had  such  possession  as  that  to  take  it  away  by  such  force,  or  the 
putting  in  such  fear,  as  to  prevent  or  overcome  his  resistance, 
would  have  been  robbery.     But  nothing  of  that  sort  character- 


376  SPECIFIC  CRIMES. 

ized  the  case  at  bar,  or  the  James  Case;  and  the  principle  in- 
volved in  Rex  v.  Fallows  is  the  same  as  that  which  we  are  con- 
sidering. The  learned  judge,  who  delivered  the  opinion  in 
James'  Case  also,  it  seems  to  us,  fell  into  the  error  of  confound- 
ing asportation  with  taking.  It  is  quite  clear,  on  the  facts  of  that 
case,  that  there  was  no  taking  in  the  sense  necessary  in  robbery, 
but  only  a  "taking  away,"  that  is  a  making  off  with  property; 
and  it  is  equally  clear  from  the  language  we  have  quoted,  that 
the  violence  was  used,  not  to  effect  a  "taking" — not  to  get  physi- 
cal control  of  the  property — that  James  already  had  without  re- 
sort to  either  violence  or  putting  in  fear — but  to  enable  him  to 
escape,  and  to  carry  with  him  property  which  he  had  not  taken 
from  the  owner,  but  which  had  been  voluntarily  placed  in  his 
hands.  We  can  not  follow  the  James  Case;  but,  receding  from 
it,  we  hold,  in  consonance  with  the  authorities  cited,  and  with 
what  we  conceive  to  be  eminently  sound  in  principle,  that  vio- 
lence or  putting  in  fear,  to  constitute  the  essential  factor  in  the 
crime  of  robbery,  must  precede,  or  be  concomitant  with,  the  tak- 
ing of  the  property  from  the  possession  of  the  owner;  and  that 
no  violence,  no  excitation  of  fear,  resorted  to  merely  for  the  pur- 
pose of  keeping  a  possession  already  acquired,  or  of  escaping  after 
the  possession  has  been  acquired,  will  supply  the  element  of  force 
which  is  an  essential  ingredient  of  this  offence. 

Some  of  the  rulings  of  the  trial  court,  doubtless  based  on  and 
induced  by  James'  Case,  supra,  are  erroneous  under  the  view  we 
have  taken;  and  the  judgment  below  will  therefore  be  reversed, 
and  the  cause  remanded. 

Reversed  and  remanded. 

State  v.  Broderick,  59  Mo.  318;  State  v.  McCune,  5  R.  I.  60;  State  v. 
John,  5  Jones  (N.  C.)  163;  Shinn  v.  State,  64  Ind.  13;  State  v.  Miller,  83 
la.  291;  Gallagher  v.  State,  30  S.  W.  557;  State  v.  Trexler,  2  Car.  L.  Rep. 
(N.  C.)  90;  Bussey  v.  State,  71  Ga.  100;  Clark,  p.  284;  Bishop  II.,  Sec. 
1174;  Wharton,  Sec.  850;  Hawley  &  McGregor,  p.  235. 

NOTE. — Some  statutes  make  it  necessary  that  the  force  be  exercised 
in  taking  or  retaining,  and  not  merely  in  making  escape. 

Shinn  v.  State,  64  Ind.  13;  Minn.  Stat  1894,  Sec.  6479;  N.  Y.  Penal 
Code,  Sec.  225;  Hawley  &  McGregor,  p.  236. 

NOTE.— The  degree  of  force  is  immaterial. 

Minn.  Stat.  1894,  Sec.  6481. 


A8HWORTH   V.   STATE.  377 

(3)  Or  the  person  must  be  put  in  fear. 

ASHWORTH  v.  STATE. 

Court  of  Criminal  Appeals  of  Texas,  1893. 
31  Tex.  Cr.  Rep.  419;  20  S.  W.  982. 

DAVIDSON,  J.  Appellant,  having  been  convicted  of  robbery, 
prosecutes  this  appeal.  By  the  injured  party  the  State  proved 
that  defendant  and  one  of  his  confederates  visited  his  store, 
heavily  armed,  and  demanded  various  articles  of  his  property. 
While  there,  defendant  took  from  his  pocket  a  paper,  and,  show- 
ing it,  said  to  the  witness,  "A  lot  of  my  companions  intended  to 
make  an  assault  on  you,  but  some  of  my  companions,  who  are  not 
bad  friends  of  yours,  opposed  it,  saying  that  on  account  of  your 
family  they  did  not  want  to  do  it,"  and  handed  him  the  paper, 
which  was  signed,  "J.  F.,  of  the  Revolution,"  "and  said  that  I 
had  better  give  him  the  goods  he  wanted,  or  he  and  his  com- 
panions would  assault  me.  I  told  defendant  I  did  not  recognize 
the  order,  and  did  not  and  would  not  have  dealings  with  that 
sort  of  people.  Defendant  again  said  he  and  his  companions  had 
consulted  about  getting  the  goods  from  me,  and  some  wanted  to 
assault  me,  and  others  did  not,  and  that  I  had  better  let  them 
have  the  goods.  I  then  asked  defendant  how  much  goods  would 
satisfy  him  and  his  companions,  because  I  wanted  to  get  off  as 
light  as  possible,  and  I  asked  him  if  he  would  be  satisfied  with 
$10  worth.  Defendant  wrote  out  a  list  of  articles,  asking  me  the 
price  after  he  had  put  down  on  this  memorandum  a  good  many 
articles.  I  said,  'You  have  gotten  down  more  than  $10  worth ;' 
and  he  said,  'You  can  take  off  some  of  the  sugar  and  coffee.'  De- 
fendant then  said  he  would  go  and  see  whether  his  companions 
would  be  satisfied  with  the  $10  worth,  and  told  me  to  fix  up  the 
parcels,  and  have  them  ready  for  him.  Defendant  and  his  com- 
panion then  left."  During  the  time  defendant  was  at  the  store 
he  was  armed  with  a  carbine  and  pistol,  and  held  the  carbine  in 
his  hand  all  the  while.  During  their  stay  at  the  store  his  com- 
panion was  marching  to  and  fro  in  front  of  the  door  with  his  gun 


378  SPECIFIC   CRIMES. 

"at  a  'carry  arms'  position,  like  a  sentinel."  "In  about  eight  min- 
utes" after  their  departure  the  former  companion  of  defendant, 
accompanied  by  another  confederate,  returned  and  carried  away 
the  goods  demanded  by  defendant.  Defendant  did  not  return  to 
the  store.  This  witness  further  stated  that  he  "gave  up  the  goods 
because  the  defendant  put  me  in  fear  of  my  life,  and  I  was  afraid 
they  would  assassinate  me."  A  brother  of  the  witness  gave  sub- 
stantially the  same  testimony.  Defendant  testified  also  to  the 
dame  facts,  and,  as  to  taking  the  goods,  "said  he  was  compelled  to 
do  so  by  Julian  Florez  and  his  band  of  followers."  "They  made 
me  do  it.  They  told  me  they  would  hang  me  if  I  did  not  do  it. 
They  caught  me  at  Charamusea  ranch,  and  said  I  was  a  spy,  and 
kept  me  with  them  about  a  month.  I  could  not  get  away  from 
them.  They  watched  me  all  the  time,  and  had  guards  put  around 
our  camp  at  night."  On  cross-examination  it  was  elicited  from 
him  that  he  and  his  two  confederates  rode  to  a  point  about  a 
quarter  of  a  mile  distant  from  the  store.  One  of  them  remained 
at  this  place,  while  defendant  and  the  other  went  to  the  store. 
Upon  their  return  to  this  companion,  defendant  remained  alone, 
while  the  other  two  went  to  the  store,  secured  the  goods,  rejoined 
defendant,  and  together  the  three  returned  to  Florez  and  his 
band  of  followers,  who  were  in  waiting  about  three  miles  distant. 
He  further  stated  that  he  was  coerced  by  Florez  and  his  band  in 
this  matter,  and  committed  the  robbery  through  fear  of  his  life, 
and  that  his  two  companions  accompanied  him  for  the  purpose  of 
preventing  his  escape.  It  is  contended  that,  under  this  state  of 
case,  the  defendant  was  not  guilty,  inasmuch  as  he  was  coerced 
into  committing  the  robbery.  The  question  was  submitted  to  the 
jury,  under  appropriate  instructions,  and  decided  adversely  to  de- 
fendant, and  we  think  correctly  so.  Nor  can  we  agree  with  con- 
tention of  counsel  that  the  evidence  is  insufficient  to  support  the 
conviction.  It  is  shown  by  defendant  that  he  and  his  two  attend- 
ant confederates  left  the  camp  of  his  nonattending  confederates, 
the  revolutionist  Florez  and  his  band  of  30,  for  the  specific  pur- 
pose of  committing  the  identical  robbery  afterwards  perpetrated 
by  them.  They  proceeded  to  the  place  specified;  procured  from 
the  designated  party,  by  putting  him  in  fear  of  his  life,  the  prop- 
erty desired;  and  conveyed  it  to  the  camp  of  their  leader.  That 
defendant  was  at  a  short  distance  from  the  store  at  the  very 


ASHWORTH   V.   STATE.  379 

moment  the  property  was  taken,  and  not  actually  present  at  the 
scene  of  the  robbery,  does  not  relieve  him  of  the  consequences  of 
the  crime;  nor  was  it  essential  to  his  conviction  that  the  goods 
should  have  been  delivered  at  the  time  of  his  demand.  It  is 
sufficient  if  the  cause  produced  by  defendant  inducing  the  de- 
livery of  the  goods  was  operative  upon  the  mind  of  the  injured 
party  at  the  time  of  such  delivery,  it  being  shown  that  defendant 
had  not  abandoned  the  enterprise,  and  was  still  acting  with  his 
co-conspirators.  This  would  constitute  robbery  as  much  in  de- 
fendant as  in  those  who  were  actually  engaged  in  the  taking; 
and  this  would  be  equally  true  if  the  goods  were  delivered  be- 
cause of  the  prosecutor's  fear  of  life,  produced  by  the  previous 
acts  of  defendant,  where  those  receiving  the  goods  were  believed 
to  be  confederates  of  defendant.  "If  thieves  come  to  rob  A.,  and, 
finding  little  upon  him,  force  him  by  menace  to  swear  to  bring 
them  a  greater  sum,  which  he  does  accordingly,  this  is  robbery, 
if,  at  the  time  he  delivered  the  money,  the  fear  of  the  menace 
continued  to  operate  upon  him."  1  Whart.  Crim.  Law,  sec.  856; 
1  Hale,  P.  C.  532.  It  was  clearly  shown  that  defendant  was  a 
principal  in  the  transaction;  that  the  goods  were  delivered  be- 
cause of  the  fear  operating  upon  the  mind  of  the  owner  at  the 
time  of  the  delivery,  and  superinduced  by  the  acts,  conduct,  and 
threats  of  defendant,  and  were  received  by  those  acting  with 
him,  in  accordance  with  the  original  design.  The  charge  is  criti- 
cised in  various  respects,  but  we  do  not  concur  in  these  criticisms. 
We  think  the  charge  fairly  presents  the  law  of  the  case.  The 
judgment  is  affirmed.  Judges  all  present  and  concurring. 

Sweat  v.  State,  17  S.  E.  273;  Long  v.  State,  12  Ga.  293;  State  v.  Hower- 
ton,  58  Mo.  581;  Clark,  p.  284;  Bishop  II.,  Sec.  1174;  Wharton,  Sec.  850; 
Hawley  &  McGregor,  p.  236. 

NOTE. — In  some  jurisdictions  it  is  made  robbery  in  the  first  degree 
when  the  act  is  committed  by  the  use  of  a  dangerous  weapon,  or  through 
the  assistance  of  an  accomplice  actually  present,  or  by  inflicting  griev- 
ous bodily  harm  on  the  person  or  persons  in  his  presence. 

Minn.  Stat.  1894,  Sec.  6482;  N.  Y.  Penal  Code,  Sec.  228. 

NOTE.— When  the  act  is  committed  without  the  surrounding  condi- 
tions of  the  preceding  note,  by  the  use  of  violence  or  by  putting  the 
person  robbed  in  fear  of  immediate  injury  to  his  person,  it  is  robbery 
in  the  second  degree. 

Minn.  Stat.  1894,  Sec.  6483;  N.  Y.  Penal  Code,  Sec.  229. 


380  SPECIFIC   CRIMES. 

e. 
Libel. 

Criminal  libel  is  defined  by  statutes  as  "A  malicious 
publication,  by  writing,  printing,  picture,  effigy,  sign,  or 
otherwise  than  by  mere  speech,  which  exposes  any  living 
person,  or  the  memory  of  any  person  deceased,  to  hatred, 
contempt,  ridicule,  or  obloquy,  or  which  causes,  or  tends 
to  cause,  any  person  to  be  shunned,  or  avoided,  or  which 
has  a  tendency  to  injure  any  person,  corporation,  or  asso- 
ciation of  persons  in  his  or  their  business  or  occupation. 
is  a  libel." 

N.  Y.  Penal  Code,  Sec.  242;  Minn.  Stat.  1894,  Sec.  6496;  Clark,  p.  346; 
Wharton,  Sec.  1594  et  seq;  Bishop  II.,  Sec.  907;  The  Penal  Code  of  Pa.; 
Shields,  vol.  I.,  210-214;  vol.  II.,  615. 


By  the  criminal  law  there  must  be  a  publication  to  con- 
stitute the  offence,  but  this  has  been  modified  by  statutes, 
so  that  if  one  knowingly  parts  with  the  defamatory  matter, 
under  circumstances  which  expose  it  to  be  seen,  the  crime 
is  committed. 

Minn.  Stat.  1894,  Sec.  6496;  State  v.  Avery,  7  Conn.  266;  Clark,  pp. 
347,  364;  Wharton,  Sec.  1618. 

NOTE. — Malice  is  necessary  to  render  one  criminally  liable  for  libel; 
but,  no  justification  appearing,  malice  is  presumed  from  the  publica- 
tion of  libelous  matter. 

Minn.  Stat.  1894,  Sec.  6498;  Com.  v.  Blanding,  3  Pick.  (Mass.)  304; 
Pledger  v.  State,  77  Ga.  242;  Clark,  p.  349;  Bishop  II.,  Sees.  922,  923; 
Wharton,  Sec.  1648. 

NOTE.— Truth  was  not  a  defence  at  common  law  to  criminal  libel,  but 
it  is  made  so  by  statute  in  some  jurisdictions. 

Const.  Minn.,  Art.  I.,  Sec.  3;  Clark,  p.  347;  Bishop  I.,  Sees.  308,  319; 
Com.  v.  Clap,  4  Mass.  163;  Com.  v.  Blanding,  3  Pick.  304;  Minn.  Stat. 
1894,  Sec.  6498;  Wharton,  Sec.  1643. 


STATE   V.   BURGDORF.  381 


4,     CRIMES    AGAINST    THE    PERSON,     PUBLIC    DECENCY    AND 

GOOD  MORALS. 

a. 
Rape. 

Rape  is  a  man's  ravishment  of  a  woman  -with  force  when 
she  does  not  consent. 

STATE  v.  BURGDORF. 

Supreme  Court  of  Missouri,  1873. 
53  Mo.  65. 

SHERWOOD,  J.,  delivered  the  opinion  of  the  court. 

Burgdorf  was  indicted  for  the  crime  of  rape  alleged  to  have 
been  perpetrated  by  him  on  Anna  Rorschach,  a  girl  about  six- 
teen years  of  age. 

The  trial  of  the  cause  resulted  in  a  verdict  of  guilty,  and  judg- 
ment accordingly,  and  after  moving  unsuccessfully  for  a  new 
trial,  this  case  comes  here  by  appeal. 

The  only  ground  relied  on  for  a  reversal,  is  that  the  verdict 
is  entirely  unsupported  by  the  evidence. 

Without  setting  forth  in  detail  the  disgusting  particulars  of 
this  accusation,  it  is  sufficient  to  say  with  regard  to  the  salient 
points  in  the  evidence,  that  whether  we  consider  the  place  of 
the  reputed  offence  (a  house  but  a  few  feet  distant  from  one  in 
which  two  families  were  then  living),  the  early  hour  in  the  even- 
ing at  which  it  is  said  to  have  occurred,  or  the  manner  of  its  al- 
leged perpetration  (viz:  the  seizure  by  the  defendant  of  both  of 
the  girl's  hands,  in  one  of  his,  the  holding  of  them  behind  her 
back,  and  while  thus  still  holding  them  seating  himself  in  a 
chair,  raising  one  of  her  legs  with  one  hand,  and  the  other  leg 
with  his  foot,  pulling  her  "astraddle"  of  his  lap  and  consummat- 
ing the  outrage,  and  this  too,  while  holding  to  the  table  on  which 


382  SPECIFIC  CRIMES. 

was  a  lighted  lamp,  with  his  other  hand,  and  thus  preventing  her 
from  pushing  him  over,  as  she  says,  the  second  time),  the  story 
of  the  girl  is  to  the  last  degree  improbable. 

In  addition  to  this,  she  is  contradicted  by  Hammill,  a  witness 
on  the  part  of  the  State  who  was  peeping  through  a  crack  of  the 
door,  only  some  seven  or  eight  feet  distant,  and  who  reiterates 
the  statement  that  though  he  heard  a  kind  of  screaming  at  first, 
the  girl  made  no  outcry  while  the  offence  was  being  perpetrated ; 
and  that  after  defendant  laid  down  his  pipe  and  took  her  by  the 
arm,  and  placed  her  in  the  position  above  referred  to,  she  seemed 
to  be  "satisfied,"  and  that  she  also  caught  hold  of  the  table  with 
the  lighted  lamp  on  it;  and  the  lamp  stood  still. 

And  Ehert,  though  not  so  positive  in  his  statements  as  to  out- 
cries, as  Hammill,  says  he  heard  no  screaming  while  he  and  the 
former  were  together  at  the  door. 

Further  than  that,  the  physician  who  examined  the  girl  the 
next  day,  stated  that  he  found  no  bruises  on  her  person,  and  that 
he  got  her  to  make  statements  respecting  the  alleged  offence. 

In  trials  of  this  character,  the  admonitory  advice  of  Lord 
Hale,  that  this  is  an  accusation  easily  made,  hard  to  be  proved, 
and  still  harder  to  be  defended  by  one  ever  so  innocent,  should 
never  be  forgotten. 

Here,  the  testimony  of  the  party  said  to  be  injured,  is  not 
only  unsupported  by  any  other  evidence,  but  in  its  more  promi- 
nent and  essential  features,  is  flatly  contradicted.  And  she 
never  makes  any  complaint  only  as  it  is  extorted  from  her  by 
the  interrogatories  of  the  medical  examiner. 

Besides  the  method  of  the  sexual  act  in  question,  can  scarcely 
be  credited,  unless  consent  were  one  of  the  ingredients  of  the 
transaction.  Thus,  where  the  prisoner  worked  himself  under  the 
prosecutrix,  and  in  this  way  had  connection  with  her,  it  was  held 
no  rape,  and  this  evidently  upon  the  ground  of  extreme  im- 
probability. 

The  crime  under  consideration,  can,  in  the  language  of  one  of 
the  authorities,  only  be  committed  where  there  is  on  the  part 
of  her  on  whom  the  attempt  is  made,  "the  utmost  reluctance, 
and  the  utmost  resistance." 

The  "passive  policy"  or  a  mere  half-way  case,  will  not  do. 

It  certainly  must  have  been  a  very  amicable  struggle  indeed, 


STATE  V.   BURGDORF.  383 

which  would  inflict  no  bruises  on  the  girl;  cause  no  outcries  dur- 
ing its  continuance,  and  leave  the  lighted  lamp  standing  still 
upon  the  table;  which  in  the  effort  for  supremacy,  was  grasped 
by  both  contestants. 

In  a  word,  this  was  not  the  conduct  of  a  woman  jealous  of  her 
chastity,  shuddering  at  the  bare  thought  of  dishonor,  and  flying 
from  pollution.  Had  it  not  been  for  the  tell-tale  crack  in  the 
door,  we  doubtless  would  have  never  heard  from  this  case. 

The  jury  committed  the  very  common  error,  of  allowing  the 
heinousness  of  the  charge  to  hurry  them  on  to  the  conclusion 
reached  in  their  verdict.  But  accusation  and  guilt  are  not  yet 
synonymous — some  attention  has  still  to  be  paid  to  the  rules  of 
evidence;  and  the  court  should  not  have  permitted  the  ver- 
dict, 

"Baseless  as  the  fabric  of  a  vision," 

Judgment  reversed  and  cause  remanded.  The  other  judges 
concur. 

Oleson  v.  State,  11  Neb.  276;  Reynolds  v.  State,  27  Neb.  90;  People  v. 
Dohring,  59  N.  Y.  374;  State  v.  Shields,  45  Conn.  263;  Brown  v.  Com.,  82 
Va.  653;  Reg.  v.  Hallet,  9  Car.  &  P.  748;  Whittaker  v.  State,  50  Wis.  518; 
Conners  v.  State,  47  Wis.  523;  Bradley  v.  State,  32  Ark.  704;  Matthews 
v.  State,  19  Neb.  330;  State  *.  Knapp,  45  N.  H.  148;  Com.  v.  Burke  105 
Mass.  376;  Blackburn  v.  State,  22  Ohio  St.  102;  State  v.  Hargrave,  65 
N,  C.  466;  State  v.  Connelly,  57  Minn.  482;  Wyatt  v.  State,  2  Swan  394; 
Minn.  Stat  1894,  Sec.  6523;  Clark,  p.  184;  Bishop  II.,  Sec.  1108;  Whar- 
ton,  Sec.  550;  Hawley  &  McGregor,  p.  169;  The  Penal  Code  of  Pa.; 
Shields,  vol.  I.,  191,  225,  438,  448,  449,  450. 

NOTE. — At  common  law  a  minor  under  the  age  of  fourteen  is  con- 
clusively presumed  incapable  of  committing  rape. 

Reg.  v.  Philips,  8  Car.  &  P.  736;  State  v.  Handy,  4  Harr.  566;  Reg.  v, 
Jordan,  9  Car.  &  P.  118;  Clark,  pp.  51,  191;  Bishop  I.,  Sec.  373;  Whar- 
ton,  Sec.  69;  Hawley  &  McGregor,  p.  170. 

NOTE.— In  some  States  this  presumption  is  disputable. 

Williams  v.  State,  14  Ohio  222;  People  v.  Randolph,  2  Park  Cr.  Rep. 
174;  Gordon  v.  State,  21  S.  E.  54;  Com.  v.  Green,  2  Pick.  380;  State  v. 
Pugh,  7  Jones  (N.  C.)  61;  N.  Y.  Penal  Code,  Sec.  279;  O'Meara  v.  State, 
17  Ohio  St.  515;  Moor.  v.  State,  17  Ohio  St.  521;  State  t?.  Jones,  39  La. 
Ann.  935;  Heilman  v.  Com.,  84  Ky.  457;  Clark,  p.  191;  Bishop  I.,  Sec. 
373;  Bishop  II.,  Sec.  1117;  Hawley  &  McGregor,  p.  170. 


384  SPECIFIC  CRIMES. 


(1)  Consent  as  a  Defence. 

The  consent  of  the  woman  to  be  a  good  defence  must 
be  rationally,  intelligently  and  voluntarily  given,  hence  if 
a  man  knowingly  has  connection  with  a  woman  incapable 
of  consenting,  or  overcomes  her  free  will  by  intimidation, 
the  act  is  rape. 

COMMONWEALTH  v.  BURKE. 

Supreme  Judicial  Court  of  Massachusetts,  1870. 
105  Mass.  376. 

GRAY,  J.  The  defendant  has  been  indicted  and  convicted  for 
aiding  and  assisting  Dennis  Green  in  committing  a  rape  upon 
Joanna  Caton.  The  single  exception  taken  at  the  trial  was  to  the 
refusal  of  the  presiding  judge  to  rule  that  the  evidence  intro- 
duced was  not  sufficient  to  warrant  a  verdict  of  guilty.  The  in- 
structions given  were  not  objected  to,  and  are  not  reported  in  the 
bill  of  exceptions.  The  only  question  before  us  therefore  is, 
whether,  under  any  instructions  applicable  to  the  case,  the  evi- 
dence would  support  a  conviction. 

That  evidence,  which  it  is  unnecessary  to  state  in  detail,  was 
sufficient  to  authorize  the  jury  to  find  that  Green,  with  the  aid 
and  assistance  of  this  defendant,  had  carnal  intercourse  with 
Mrs.  Caton,  without  her  previous  assent,  and  while  she  was,  as 
Green  and  the  defendant  both  knew,  so  drunk  as  to  be  utterly 
senseless  and  incapable  of  consenting,  and  with  such  force  as 
was  necessary  to  effect  the  purpose. 

All  the  statutes  of  England  and  of  Massachusetts,  and  all  the 
text  books  of  authority,  which  have  undertaken  to  define  the 
crime  of  rape,  have  defined  it  as  the  having  carnal  knowledge  of 
a  woman  by  force  and  against  her  will.  The  crime  consists  in  the 
enforcement  of  a  woman  without  her  consent.  The  simple  ques- 
tion, expressed  in  the  briefest  form,  is,  "Was  the  woman  willing 
or  unwilling?  The  earlier  and  more  weighty  authorities  show 
that  the  words  "against  her  will,"  in  the  standard  definitions, 


COMMONWEALTH  V.   BURKE.  385 

mean  exactly  the  same  thing  as  "without  her  consent;"  and  that 
the  distinction  between  these  phrases,  as  applied  to  this  crime, 
which  has  been  suggested  in  some  modern  books,  is  unfounded. 

The  most  ancient  statute  upon  the  subject  is  that  of  Westm.  I. 
c.  13,  making  rape  (which  had  been  a  felony  at  common  law)  a 
misdemeanor,  and  declaring  that  no  man  should  "ravish  a  maiden 
within  age,  neither  by  her  own  consent,  nor  without  her  consent, 
nor  a  wife  or  maiden  of  full  age,  nor  other  woman,  against  her 
will,"  on  penalty  of  fine  and  imprisonment,  either  at  the  suit  of  a 
party  or  of  the  king.  The  St.  of  Westm.  II.  c.  34,  ten  years 
later,  made  rape  felony  again,  and  provided  that  if  a  man  should 
"ravish  a  woman,  married,  maiden,  or  other  woman,  where  she 
did  not  consent,  neither  before  nor  after,"  he  should  be  punished 
with  death,  at  the  appeal  of  the  party;  "and  likewise,  where  a 
man  ravisheth  a  woman,  married  lady,  maiden,  or  other  woman, 
with  force,  although  she  consent  afterwards,"  he  should  have  a 
similar  sentence  upon  prosecution  in  behalf  of  the  king. 

It  is  manifest  upon  the  face  of  the  Statutes  of  Westminster, 
and  is  recognized  in  the  oldest  commentaries  and  cases,  that  the 
words  "without  her  consent"  and  "against  her  will"  were  used 
synonymously;  and  that  the  second  of  those  statutes  was  in- 
tended to  change  the  punishment  only,  and  not  the  definition  of 
the  crime,  upon  any  indictment  for  rape — leaving  the  words 
"against  her  will,"  as  used  in  the  first  statute,  an  accurate  part  of 
the  description.  Mirror,  c.  1,  sec.  12;  c.  3,  sec.  21;  c.  5,  sec.  5. 
30  &  31  Edw.  I.  529-532.  22  Edw.  IV.  22.  Staunf.  P.  C.  24  a. 
Coke  treats  the  two  phrases  as  equivalent;  for  he  says:  "Rape  is 
felony  by  the  common  law  declared  by  parliament,  for  the  un- 
lawful and  carnal  knowledge  and  abuse  of  any  woman  above 
the  age  of  ten  years  against  her  will,  or  of  a  woman  child  under 
the  age  of  ten  years  with  her  will  or  against  her  will;"  although 
in  the  latter  case  the  words  of  the  St.  of  Westm.  I.  (as  we  have 
already  seen)  were  "neither  by  her  own  consent,  nor  without  her 
consent."  3  Inst.  60.  Coke  elsewhere  repeatedly  defines  rape  as 
"the  carnal  knowledge  of  a  woman  by  force  and  against  herwill." 
Co.  Lit.  123  b.  2  Inst.  180.  A  similar  definition  is  given  by 
Hale,  Hawkins,  Comyn,  Blackstone,  East  and  Starkie,  who  wrote 
while  the  Statutes  of  Westminster  were  in  force;  as  well  as  by 
the  text  writers  of  most  reputation  since  the  St.  of  9  Geo.  IV.  c. 
25 


386  SPECIFIC  CRIMES. 

31,  repealed  the  earlier  statutes,  and,  assuming  the  definition  of 
the  crime  to  be  well  established,  provided  simply  that  "every  per- 
son convicted  of  the  crime  of  rape  shall  suffer  death  as  a  felon." 
1  Hale  P.  C.  628.  1  Hawk.  c.  41.  Com.  Dig.  Justices,  S.  2.  4= 
Bl.  Com.  210.  1  East  P.  C.  434.  Stark.  Crim.  PL  (2d  ed.)  77, 
431.  1  Russell  on 'Crimes  (2d  Am.  ed.),  556;  (7th  Am.  ed.)  675. 
3  Chit.  Crim.  Law,  810.  Archb.  Crim.  PI.  (10th  ed.)  481.  1 
Gabbett  Crim.  Law,  831.  There  is  authority  for  holding  that  it 
is  not  even  necessary  that  an  indictment,  which  alleges  that  the 
defendant  "feloniously  did  ravish  and  carnally  know"  a  woman, 
should  add  the  words  "against  her  will."  1  Hale  P.  C.  632.  Har- 
man  v.  Commonwealth,  12  S.  &  R.  69.  Commonwealth  v.  Fog- 
erty,  8  Gray,  489.  However  that  may  be,  the  office  of  those 
words,  if  inserted,  is  simply  to  negative  the  woman's  previous 
consent.  Stark.  Crim.  PI.  431  note. 

In  the  leading  modern  English  case  of  The  Queen  v.  Camplin, 
the  great  majority  of  the  English  judges  held  that  a  man  who 
gave  intoxicating  liquor  to  a  girl  of  thirteen,  for  the  purpose,  as 
the  jury  found,  "of  exciting  her,  not  with  the  intention  of  render- 
ing her  insensible,  and  then  having  sexual  connection  with  her," 
and  made  her  quite  drunk,  and,  while  she  was  in  a  state  of  in- 
sensibility, took  advantage  of  it,  and  ravished  her,  was  guilty  of 
rape.  It  appears  indeed  by  the  judgment  delivered  by  Patte- 
son,  J.  in  passing  sentence,  as  reported  in  1  Cox  Crim.  Cas.  220, 
and  1  C.  &  K.  746,  as  well  by  the  contemporaneous  notes  of 
Parke,  B.,  printed  in  a  note  to  1  Denison,  92,  and  of  Alderson, 
B.,  as  read  by  him  in  The  Queen  v.  Page,  2  Cox  Crim.  Cas.  133, 
that  the  decision  was  influenced  by  its  having  been  proved  at  the 
trial  that,  before  the  girl  became  insensible,  the  man  had  at- 
tempted to  procure  her  consent,  and  had  failed.  But  it  further 
appears  by  those  notes  that  Lord  Denman,  C.  J.,  Parke,  B.,  and 
Patteson,  J.,  thought  that  the  violation  of  any  woman  without 
her  consent,  while  she  was  in  a  state  of  insensibility  and  had  no 
power  over  her  will,  by  a  man  knowing  at  the  time  that  she  was 
in  that  state,  was  a  rape,  whether  such  state  was  caused  by  him 
or  not;  for  example,  as  Alderson,  B.,  adds,  "in  the  case  of  a 
woman  insensibly  drunk  in  the  streets,  not  made  so  by  the  pri- 
soner." And  in  the  course  of  the  argument  this  able  judge  him- 
self said  that  it  might  be  considered  against  the  general  pre- 


COMMONWEALTH   V.   BURKE.  387 

sumable  will  of  a  woman  that  a  man  should  have  unlawful  con- 
nection with  her.  The  later  decisions  have  established  the  rule  in 
England  that  unlawful  and  forcible  connection  with  a  woman 
in  a  state  of  unconsciousness  at  the  time,  whether  that  state  has 
been  produced  by  the  act  of  the  prisoner  or  not,  is  presumed  to  be 
without  her  consent,  and  is  rape.  The  Queen  v,  Ryan,  2  Cox 
Grim.  Gas.  115.  Anon,  by  Willes,  J.,  8  Cox  Grim.  Gas.  134. 
Regina  v.  Fletcher,  Ib.  131;  S.  C.  Bell,  63.  Regina  v.  Jones,  4 
Law  Times  (N.  S.)  154.  The  Queen  v.  Fletcher,  Law  Rep.  1  C. 
C.  39;  S.  C.  10  Cox  Grim.  Gas.  248.  The  Queen  v.  Barrow,  Law 
Rep.  1  C.  C.  156;  S.  C.  11  Cox  Grim.  Gas.  191.  Although  in 
Regina  v.  Fletcher,  ubi  supra,  Lord  Campbell,  C.  J.  (ignoring 
the  old  authorities  and  the  repealing  St.  of  9  Geo.  IV.),  unneces- 
sarily and  erroneously  assumed  that  the  St.  of  Westm.  II.  was 
still  in  force;  that  it  denned  the  crime  of  rape;  and  that  there 
was  a  difference  between  the  expressions  "against  her  will"  and 
"without  her  consent,"  in  the  definitions  of  this  crime;  none  of 
the  other  cases  in  England  have  been  put  upon  that  ground,  and. 
their  judicial  value  is  not  impaired  by  his  inaccuracies. 

The  earliest  statute  of  Massachusetts  upon  the  subject  was- 
passed  in  1642,  and,  like  the  English  Statutes  of  Westminster,, 
used  "without  consent"  as  synonymous  with  "against  her  will,"' 
as  is  apparent  upon  reading  its  provisions,  which  were  as  follows  r 
1st.  "If  any  man  shall  unlawfully  have  carnal  copulation  with: 
any  woman  child  under  ten  years  old,  he  shall  be  put  to  death, 
whether  it  were  with  or  without  the  girl's  consent."  2d.  "If  any 
man  shall  forcibly  and  without  consent  ravish  any  maid  or 
woman  that  is  lawfully  married  or  contracted,  he  shall  be  put 
to  death."  3d.  "If  any  man  shall  ravish  any  maid  or  single 
woman,  committing  carnal  copulation  with  her  by  force,  against 
her  will,  that  is  above  the  age  of  ten  years,  he  shall  be  either 
punished  with  death,  or  with  some  other  grievous  punishment, 
according  to  circumstances,  at  the  discretion  of  the  judges."  2 
Mass.  Col.  Rec.  21.  Without  dwelling  upon  the  language  of  the 
first  of  these  provisions,  which  related  to  the  abuse  of  female 
children,  it  is  manifest  that  in  the  second  and  third,  both  of 
which  related  to  the  crime  of  rape,  strictly  so  called,  and  differed 
only  in  the  degree  of  punishment,  depending  upon  the  question 
whether  the  woman  was  or  was  not  married  or  engaged  to  be 


388  SPECIFIC  CRIMES. 

married,  the  legislature  used  the  words  "without  consent,"  in  the 
second  provision,  as  precisely  equivalent  to  "against  her  will,"  in 
the  third.  The  later  revisions  of  the  statute  have  abolished  the 
difference  in  punishment,  and  therefore  omitted  the  second  pro- 
vision, and  thus  made  the  definition  of  rape  in  all  cases  the  ravish- 
ing and  carnally  knowing  a  woman  "by  force  and  against  her 
will."  Mass.  Col.  Laws  (ed.  1660),  9;  (ed.  1672)  15.  Mass.  Prov. 
Laws,  1692-3  (4  W.  &  M.)  c.  19,  sec.  11;  1697  (9  W.  III.)  c. 
18;  (State  ed.)  56,  296.  St  1805,  c.  97,  sec.  1.  Kev.  Sts.  c.  125, 
sec.  18.  Gen.  Sts.  c.  160,  sec.  26.  But  they  cannot,  upon  any 
proper  rule  of  construction  of  a  series  of  statutes  in  pari  materid, 
be  taken  to  have  changed  the  description  of  the  offeneo.  Com- 
monwealth v.  Sugland,  4  Gray,  7.  Commonwealth  v.  Bailey.  13 
Allen,  541,  545. 

We  are  therefore  unanimously  of  opinion  that  the  crime, 
which  the  evidence  in  this  case  tended  to  prove,  of  a  man's  having 
carnal  intercourse  with  a  woman,  without  her  consent,  while  she 
was,  as  he  knew,  wholly  insensible  so  as  to  be  incapable  of  con- 
senting, and  with  such  force  as  was  necessary  to  accomplish  the 
purpose,  was  rape.  If  it  were  otherwise,  any  woman  in  a  state  of 
utter  stupefaction,  whether  caused  by  drunkenness,  sudden  dis- 
ease, the  blow  of  a  third  person,  or  drugs  which  she  had  been 
persuaded  to  take  even  by  the  defendant  himself,  would  be  un- 
protected from  personal  dishonor.  The  law  is  not  open  to  such  a 
Teproach. 

,    Exceptions  overruled. 

State  v.  Artherton,  50  la.  189;  People  v.  Croswell,  13  Mich.  427;  Don 
Moran  v.  People,  25  Mich.  355;  State  v.  Ward,  73  la.  532;  Reglna  v. 
Camplin,  1  Den.  C.  C.  89;  Regina  v.  Barratt,  12  Cox  C.  C.  498;  Regina  v. 
Mayers,  12  Cox  C.  C.  311;  Rice  v.  State,  17  So.  286;  Carugh  v.  State,  25 
S.  W.  778;  State  v.  Enright,  58  N.  W.  901;  Thompson  v.  State,  26  S.  W. 
987;  Clark,  p.  185  et  seq.;  Bishop  II.,  Sec.  1122;  Wharton,  Sec.  556  et 
seq.;  Hawley  &  McGregor,  p.  172. 

NOTE.— In  some  jurisdictions  fraud  will  not  supply  the  place  of  force; 
and  consent,  though  obtained  by  fraud,  is  a  good  defence. 

Clark  v.  State,  30  Tex.  448;  Don  Moran  v.  People,  25  Mich.  355;  State 
v.  Burgdorf,  53  Mo.  65;  Whittaker  v.  State,  50  Wis.  518;  People  v. 
Royal,  53  Cal.  62;  State  v.  Murphy,  6  Ala.  765;  People  v.  Cross  well,  ±3 
Mich.  427. 


PEOPLE  V.   VAN   ALSTYNE.  38$ 

Contra.— Regina  v.  Dee,  15  Cox  C.  C.  579;  Mooney  v.  State,  29  Tex. 
App.  257;  Pomeroy  v.  State,  94  Ind.  96;  Reg.  v.  Flattery,  13  Cox  C.  C. 
388;  Osgood  v.  State,  64  Wis.  472;  State  v.  Shields,  45  Conn.  256;  State 
v.  Farr,  28  la.  397;  Clark,  p.  188;  Bishop  II.,  Sec.  1122;  Wharton,  Sees. 
559-563;  Hawley  &  McGregor,  p.  172. 

NOTE. — At  common  law  a  girl  under  twelve  could  not  consent.  The 
age  of  consent  is  fixed  by  statute  in  each  jurisdiction.  Consent  below 
the  age  is  not  a  defence. 

Com.  v.  Roosnell,  143  Mass.  32;  People  v.  Goulette,  82  Mich.  36;  Peo- 
ple v.  Flaherty,  79  Hun.  48;  People  v.  Verdegreen,  39  Pac.  607;  Head 
v.  State,  61  N.  W.  494;  Farrell  v.  State,  24  Atl.  Rep.  223;  White  v.  Com., 
28  S.  W.  340;  Clark,  p.  187;  Bishop  II.,  Sec.  1118;  Hawley  &  McGregor, 
p.  172;  Minn.  Stat.  1894,  Sec.  6524. 

NOTE. — Penetration  of  the  male  organ  must  be  proved,  but  it  may  be 
inferred  from  circumstances. 

State  v.  Smith,  9  Houst.  488;  33  Atl.  Rep.  441;  Hardtke  v.  State,  67 
Wis.  552;  State  v.  Dalton,  106  Mo.  463;  State  v.  Hargrave,  65  N.  C.  466; 
Osgood  v.  State,  64  Wis.  472;  Minn.  Stat.  1894,  Sec.  6527;  Clark,  p.  189; 
Bishop  II.,  Sec.  1132;  Wharton,  Sec.  554;  Hawley  &  McGregor,  p.  170. 


b. 
Seduction. 

Seduction  is  the  act  of  enticing  an  unmarried  female  of 
previous  chaste  character  to  have  illicit  intercourse.  The 
object  is  here  accomplished  by  persuasion  and  promises  of 
marriage  and  not  by  force. 

PEOPLE  v.  VAN  ALSTYNE. 

Court  of  Appeals  of  New  York,  1895. 
144  N.  Y.  361;  39  N.  E.  343. 

PECKHAM,  J.  The  defendant  has  been  convicted  of  the  crime 
of  seduction  under  a  promise  of  marriage.  It  is  urged  in  his  be- 
half that  the  evidence  on  the  trial  as  given  by  the  prosecutrix 
herself  simply  shows  the  making  of  a  conditional  promise  by  de- 
fendant to  marry  the  prosecutrix  only  in  case  she  became  preg- 
nant as  a  result  of  that  intercourse.  It  is  then  insisted  that  if 


390  SPECIFIC  CRIMES. 

the  promise  were  of  that  nature  it  was  insufficient  upon  which  to 
base  a  conviction  under  the  statute.  We  think  the  defendant's 
counsel  is  right  in  the  construction  to  be  given  the  evidence  in 
the  case.  On  carefully  reading  the  testimony  of  the  prosecutrix 
we  feel  confident  that  the  only  promise  which  she  proves  on  the 
part  of  defendant  was  the  conditional  one  to  marry  her  in  case 
she  became  pregnant.  She  does  state  in  one  portion  of  her  evi- 
dence an  unconditional  promise,  but  she  immediately  follows  it 
by  the  statement  of  the  conditional  one,  and  we  think  it  obvious 
from  her  whole  evidence  that  the  conditional  is  really  the  only 
promise  which  she  regards  as  made  or  which  can  reasonably  be 
inferred.  The  evidence  which  she  gave  before  the  justice  in  the 
other  proceeding,  and  which  in  substance  she  admitted,  and 
which  was  proved  upon  this  trial,  shows  that  she  regarded  the 
promise  as  one  made  only  in  case  she  became  pregnant.  As- 
suming the  promise  was  of  such  a  nature  we  are  of  the  opinion 
that  it  was  not  of  that  kind  contemplated  by  the  statute.  It  was 
never  intended  to  protect  a  woman  who  was  willing  to  speculate 
upon  the  results  of  her  intercourse  with  a  man  and  who  only  ex- 
acted as  the  price  of  her  consent  a  promise  on  his  part  to  marry 
her  in  case  the  intercourse  resulted  in  her  pregnancy.  The  con- 
ditional promise  mentioned  in  Kenyon  v.  People  (26  N.  Y.  203) 
is  very  different  from  the  one  here  under  discussion.  It  was  an 
absolute  promise  to  marry  the  prosecutrix  if  she  would  consent 
to  have  intercourse  with  him,  and  when  she  consented  and  the 
intercourse  took  place,  the  promise  became  mutual  and  the  con- 
dition was  performed.  A  promise  on  her  part  was  implied  from 
the  fact  that  she  yielded  to  the  solicitations  of  the  defendant, 
and,  in  consideration  of  his  promise,  the  intercourse  took  place. 
The  condition  was  performed  the  very  moment  that  such  inter- 
course was  accomplished.  It  came  within  the  very  words  of  the 
statute  and  also  within  its  purpose.  The  seduction  was  accom- 
plished under  and  upon  the  faith  of  an  unconditional  promise 
to  marry  her.  It  was  the  consideration  for  and  the  inducement 
to  such  intercourse.  In  Boyce  v.  People  (55  N.  Y.  644)  the 
same  kind  of  a  conditional  promise  was  proved  and  held  to  be 
sufficient,  the  court  refusing  to  hold  that  there  was  anything  in 
the  evidence  to  justify  the  claim  that  the  promise  was  to  marry 
only  in  case  the  accused  should  be  satisfied  that  the  prosecutrix 


PEOPLE   V.    VAN    ALSTYNE.  391 

was  a  virgin.  In  Armstrong  v.  People  (70  N".  Y.  38,  at  53)  the 
court  says  that  the  question  is  not  raised  by  the  evidence,  and 
refuses  to  discuss  it  for  that  reason.  The  statute  was  passed  to 
protect  a  confiding  and  chaste  woman  in  yielding  to  the  solicita- 
tions of  the  man  who  had  promised  to  marry  her.  It  was  not  the 
purpose  of  the  law  to  throw  its  protection  around  the  woman  who 
was  willing  to  consent  to  the  act,  and  who  only  asked  for  a  prom- 
ise of  marriage  in  case  her  lapse  from  chastity  should  be  discov- 
ered by  reason  of  her  pregnancy.  In  such  case  she  consents  at  a 
time  when  there  is  no  real  promise. 

We  think  the  case  of  People  v.  Duryea  (30  N".  Y.  Supplement, 
877)  was  well  decided  upon  this  very  ground,  and  we  approve  the 
reasoning  of  Brown,  P.  J.,  therein  contained. 

The  court  below  should  have  granted  the  motion  of  defend- 
ant, and  should  have  discharged  or  directed  the  jury  to  acquit 
him  on  the  ground  that  no  sufficient  promise  of  marriage  was 
proved  to  constitute  a  criminal  offence  under  section  284  of  the 
Penal  Code. 

The  judgment  should  be  reversed,  and,  as  there  can  be  no  con- 
viction of  defendant  under  the  evidence  as  given  by  the  prosecu- 
trix,  he  should  be  discharged. 

All  concur,  except  Haight,  J.,  not  sitting. 

Judgment  reversed. 

State  v.  Crawford,  34  la.  40;  State  v.  Timmens,  4  Minn.  325;  State  v. 
Higdon,  32  la.  262;  Wood  v.  State,  48  Ga.  192;  People  v.  Krusick,  93 
Cal.  74;  State  v.  Pimm,  98  Mo.  368;  State  v.  Mclntire,  56  N.  W.  Rep. 
419;  O'Neill  v.  State,  85  Ga.  383;  State  v.  Cochran,  10  Wash.  562;  Nor- 
ton v.  State,  16  So.  264;  State  v.  Thornton,  108  Mo.  640;  Clark,  p.  184; 
Minn.  Stat.  1894,  Sec.  6531;  Wharton,  Sec.  1756  et  seq.;  Hawley  &  Mc- 
Gregor, p.  282. 

NOTE.— In  most  jurisdictions  subsequent  intermarriage  or  lapse  of  the 
statutory  period  of  time  is  a  bar  to  prosecution. 

Minn.  Stat.  1894,  Sec.  6532;  N.  Y,  Penal  Code,  Sec.  285;  Clark,  p.  198; 
Wharton,  Sec.  1760. 


392  SPECIFIC   CHIMES. 

C. 

Abortion. 

"Abortion  is  to  cause  or  procure  the  miscarriage  or  pre- 
mature delivery  of  a  woman." 

STATE  v.  MORROW. 

Supreme  Court  of  South  Carolina,  1893. 
40  S.  C.  221;  18  S.  E.  853. 

MclvER,  C.  J.  The  defendant  in  this  case  was  indicted  under 
the  act  of  1883  (18  St.  547),  entitled  "An  act  to  amend  the  crim- 
inal law  by  providing  for  the  punishment  of  abortion."  The 
only  portions  of  that  act  pertinent  to  the  present  appeal  are  sec- 
tions 1  and  2.  Section  1  reads  as  follows:  "That  any  person  who 
shall  administer  to  any  woman  with  child,  or  prescribe  for  any 
such  woman,  or  suggest  to,  or  advise,  or  procure  her  to  take  any 
medicine,  substance,  drug  or  thing  whatever,  or  who  shall  use  or 
employ,  or  advise  the  use  or  employment  of,  any  instrument  or 
other  means  of  force  whatever,  with  intent  thereby  to  cause  or 
procure  the  miscarriage,  or  abortion,  or  premature  labor  of  any 
such  woman,  unless  the  same  shall  have  been  necessary  to  pre- 
serve her  life,  or  the  life  of  such  child,  shall,  in  case  the  death  of  such 
child  or  of  such  woman  results,  in  whole  or  in  part,  therefrom,  be 
deemed  guilty  of  a  felony,  and  upon  conviction  thereof,  shall 
be  punished  by  imprisonment  in  the  penitentiary  for  a  term  not 
more  than  twenty  years,  nor  less  than  five  years."  Section  2  is  in 
the  following  language :  "That  any  person  who  shall  administer 
to  any  woman  with  child,  or  prescribe,  or  procure,  or  provide 
for  any  such  woman,  or  advise  or  procure  any  such  woman  to 
take,  any  medicine,  drug,  substance,  or  thing  whatever,  or  shall 
use  or  employ,  or  advise  the  use  or  employment  of,  any  instru- 
ment or  other  means  of  force  whatever,  with  intent  thereby  to 
cause  or  procure  the  miscarriage,  or  abortion,  or  premature  labor, 
of  any  such  woman,  shall,  upon  conviction  thereof,  be  punished 


STATE  V.  MORROW.  393 

by  imprisonment  in  the  penitentiary  for  a  term  not  more  than 
five  years,"  etc. 

The  indictment  contained  two  counts,  the  first  charging  that 
the  defendant  "unlawfully  did  suggest,  advise,  induce,  and  pro- 
cure one  Colie  Fowler,  a  single  woman,  then  and  there  being 
pregnant  with  child,  to  take  divers  quantities  of  a  certain  per- 
nicious and  destructive  substance,  drug,  or  medicine,  in  the  form 
and  shape  of  pills,  with  intent  to  cause  or  procure  the  abortion," 
etc.,  and  proceeds  to  allege  that,  by  the  use  of  said  means,  the 
abortion  was  procured,  and  that  the  death  of  the  said  Colie  Fow- 
ler was  thereby  caused.  In  the  second  count  the  charge  is  that 
the  defendant  "unlawfully  did  prescribe,  procure,  and  advise  one 
Colie  Fowler,  a  single  woman,  then  and  there  being  pregnant 
with  child,  to  take  divers  quantities  of  a  certain  pernicious  and 
destructive  substance,  drug,  or  medicine,  in  the  form  and  shape 
of  pills,  with  intent  to  cause  or  procure  the  abortion,"  etc. 

The  case  came  on  for  trial  before  his  honor,  Judge  Wallace, 
and  a  jury,  when  there  was  much  testimony  taken,  and,  in  the 
opening  argument  of  the  counsel  for  the  defence,  a  plea  to  the 
jurisdiction  of  the  court  was  interposed,  upon  grounds  which  will 
hereinafter  appear;  and,  after  argument  thereon,  the  plea  to  the 
jurisdiction  was  overruled,  and  the  case  was  submitted  to  the 
jury  under  the  charge  of  the  judge,  which  should  be  incorporated 
in  the  report  of  this  case,  together  with  his  reasons  for  overruling 
the  plea.  The  jury  having  rendered  a  verdict  of  guilty,  and  sen- 
tence having  been  passed  upon  the  defendant,  he  appeals,  upon 
the  several  exceptions  set  out  in  the  record,  which  need  not  be 
repeated  here,  but  which  should  likewise  appear  in  the  report 
of  the  case. 

We  propose  to  take  up  these  exceptions  in  their  inverse  order. 
The  twelfth  exception  imputes  error  in  admitting  as  evidence,  in 
reply,  certain  letters  purporting  to  have  been  written  by  the  de- 
fendant. This  is  manifestly  based  upon  a  misconception,  for 
nothing  of  the  kind  appears  either  in  the  printed  case  or  in  the 
typewritten  copy  of  the  testimony  filed  in  this  court.  Indeed,  as 
no  allusion  was  made  to  this  exception  in  the  argument  of  counsel 
for  appellant,  we  suppose  it  was  abandoned;  but,  whether  aban- 
doned or  not,  it  certainly  cannot  be  sustained,  for  the  reason 
indicated. 


394  SPECIFIC   CRIMES. 

The  eleventh  exception  complains  of  error  on  the  part  of  the 
circuit  judge  in  overruling  defendant's  exception  to  the  indict- 
ment, upon  the  ground  that  the  acts  charged  in  the  first  count 
are  not  charged  to  have  been  done  "feloniously."  Here,  also,  we 
are  unable  to  find  anything  in  the  case  upon  which  this  exception 
can  be  based.  It  does  not  appear  that  the  circuit  judge  was  ever 
called  upon  to  make,  or  did  make,  any  ruling  upon  the  subject. 
Besides,  no  such  exception  could  be  heard  unless  taken  before 
the  jury  were  sworn  (Act  1887;  19  St.  829);  and  there  is  nothing 
to  show  that  the  exception  was  taken  at  the  proper  time.  Indeed, 
we  presume  from  the  fact  that  no  allusion  is  made  in  the  argu- 
ment submitted  here  to  this  exception  that  it  is  likewise  aban- 
doned, but,  whether  this  is  so  or  not,  the  exception  must  be  over- 
ruled. 

The  tenth  exception  is  somewhat  misleading,  and  for  that  rea- 
son this  exception  is  reproduced  precisely  as  we  find  it  in  the 
record,  with  the  italics  there  found :  'Tor  that  his  honor  charged 
the  jury  that  if  they  believed  beyond  a  reasonable  doubt  that 
the  defendant  procured,  or  attempted  or  intended  to  procure,  an 
abortion  by  any  of  the  means  set  out  and  prescribed  in  the  act  on 
that  subject,  they  must  find  a  verdict  of  guilty  on  the  first  or  sec- 
ond count,  or  generally,  as  the  case  might  be ;  whereas  he  should 
have  instructed  the  jury  that  the  prosecution  was  limited  in  its 
evidence,  and  the  jury,  in  arriving  at  their  verdict,  to  the  means 
(and  the  proof  thereof)  set  forth  in  the  indictment."  The  point 
of  this  exception,  as  we  understand  it,  is  that  inasmuch  as  the 
statute  under  which  this  defendant  was  indicted  contemplates 
two  distinct  and  different  means  by  which  abortion  may  be 
caused, — viz:  (1)  by  the  use  of  drugs,  and  (2)  by  the  use  of  in- 
struments, involving  the  application  of  force, — and  inasmuch  as 
the  indictment  charges  only  the  first,  no  evidence  could  properly 
be  received  tending  to  show  the  use  of  the  second,  and,  if  re- 
ceived, the  jury  should  have  been  instructed  that  they  could  not 
find  the  defendant  guilty  if  they  believed  that  the  abortion  was 
caused,  or  attempted  to  be  caused,  by  the  use  of  instruments,  in- 
volving some  degree  of  force,  and  not  by  the  use  of  drugs,  as 
alleged  in  the  indictment.  To  make  this  point  available  to  the 
defendant,  there  should  have  been  some  request  so  to  instruct 
the  jury,  and  a  refusal  to  grant  such  request.  But  no  such  request 


STATE   V.  MORROW.  395 

and  no  such  refusal  are  to  be  found  in  the  case.  The  copy  of  the 
testimony  with  which  we  have  been  furnished,  in  addition  to  the 
printed  case,  shows  that  there  was  no  testimony  offered  by  the 
prosecution  tending  to  show  that  the  abortion  was  either  caused 
or  attempted  by  the  use  of  any  other  means  than  those  set  forth 
in  the  indictment;  and  it  is  a  well-settled  rule  that  the  correct- 
ness of  a  judge's  charge  must  be  tested  by  its  application  to  the 
case,  as  made  by  the  pleadings  and  the  evidence.  The  matter  of 
the  use  of  instruments,  involving  some  degree  of  force,  was  in- 
troduced into  the  case  by  the  defendant  in  his  cross-examination 
of  the  witnesses  for  the  prosecution,  and  in  the  examination  of 
the  witnesses  for  the  defence,  for  the  purpose,  doubtless,  of 
showing  that  the  abortion  was  caused,  or  at  least  was  more  likely 
to  have  been  caused,  by  the  use  of  instruments,  rather  than  by 
the  use  of  the  means  set  out  in  the  indictment.  It  was  a  pure 
matter  of  defence,  not  embraced  in  the  issue  presented  by  the 
pleadings;  and,  if  the  defendant  desired  that  the  jury  should  be 
instructed  as  to  the  effect  of  such  defence  if  made  out  by  the 
evidence,  his  proper  course  was  to  present  a  request  to  that  effect. 
But,  in  addition  to  this,  the  exception  does  not  correctly  represent 
the  judge's  charge.  He  did  not  say  to  the  jury  what  he  is  repre- 
sented to  have  said  in  that  portion  of  the  exception  which  is 
italicized.  He  did  not  use  the  word  "any,"  which  is  the  important 
word  in  the  exception,  necessary  to  raise  the  point  upon  which 
this  exception  is  based.  On  the  contrary,  the  judge,  after  setting 
out  the  first  section  of  the  act,  under  which  the  first  count  in  the 
indictment  was  framed,  and  stating  what  was  the  charge  in  that 
count,  proceeded  to  say:  "That  is  your  first  inquiry, — whether 
or  not  this  defendant  did  that.  If  he  did,  he  is  guilty,  under  this 
act;  if  he  did  not,  he  is  not  guilty,  under  this  first 
section  of  the  act."  If  he  did  what?  Why,  certainly  if  he 
did  what  was  charged  in  the  first  count  of  the  indictment,  viz: 
cause  the  abortion  by  the  use  of  drugs.  But  the  judge  did  not 
stop  there,  for  he  immediately  proceeded  to  say:  "If  he  did  not, 
he  is  not  guilty."  Could  language  make  it  plainer  to  the  jury 
that,  unless  the  defendant  did  what  was  charged  in  the  first 
count,  he  could  not  be  found  guilty,  no  matter  what  else  he  may 
have  done.  So  that  this  analysis  shows  that  the  jury  were  prac- 
tically instructed,  so  far  at  least  as  the  first  count  was  concerned, 


396  SPECIFIC   CRIMES. 

precisely  in  accordance  with  such  a  request  as  would  have  been 
the  proper  mode  of  raising  the  point;  and  as  the  jury  found  a 
general  verdict  of  guilty,  which,  of  course,  embraced  the  first 
count,  if  there  was  no  error  (as  there  evidently  was  none)  in  the 
instruction  as  to  the  first  count,  it  would  make  no  practical  dif- 
ference to  the  defendant  even  if  there  was  error  in  the  instruc- 
tion as  to  the  second  count,  which,  however,  we  are  not  prepared 
to  admit. 

On  examination  of  that  portion  of  the  charge  which  relates 
to  the  second  count  in  the  indictment,  we  find  that  the  circuit 
judge,  after  setting  out  the  second  section  of  the  act,  and  pointing 
out  the  difference  between  that  and  the  first  section,  and  declar- 
ing, in  general  terms,  what  would  constitute  a  violation  of  sec- 
tion 2,  proceeds  to  say  that  in  order  to  convict  the  defendant, 
under  that  section,  "you  will  have  to  be  satisfied  beyond  a  reason- 
able doubt  that  he  attempted  to  procure  an  abortion, — intended 
to  do  it, — by  the  means  stated  here  in  the  section  I  have  read  to 
you."  This  language,  isolated  from  the  context,  would  seem  to> 
afford  some  support  for  the  position  contended  for  by  the  ap- 
pellant; but  when  it  is  taken  in  connection  with  the  entire 
charge,  as  it  must  be,  under  the  well-settled  rule,  it  is  apparent 
that  it  does  not  justify  the  position  of  the  appellant,  for  in  the  very 
next  paragraph  we  find  that  the  jury,  after  being  told  what  were 
the  issues  which  they  were  to  try,  were  instructed  as  follows: 
"If  you  are  satisfied  beyond  a  reasonable  doubt  that  either  or 
both  of  these  offences  are  made  out,  you  will  have  to  convict  him 
according  to  the  degree  of  offence  described  in  the  act 
and  set  forth  in  the  indictment."  (Italics  ours.)  Again,  the  jury 
were  told :  "If  you  are  of  opinion,  and  are  satisfied  of  it,  beyond 
a  reasonable  doubt,  that  he  attempted  to  procure  an  abortion, — 
intended  to  do  it, — by  the  means  set  out  here  in  this  act,  but  that 
such  means  did  not  accomplish  his  purpose,  but  that  the  abortion 
was  procured  by  other  means,  to  which  he  was  not  a  party,  then 
you  cannot  convict  him  on  the  first  count,  but  may  on  the  sec- 
ond, if  you  are  satisfied  beyond  a  reasonable  doubt."  This,  fol- 
lowed by  the  approval  and  adoption  of  the  solicitor's  first  request 
to  charge,  as  set  out  in  the  charge,  shows  that  the  judge  did  not 
intend  to  charge,  and  could  not  have  been  understood  as  charg- 
ing, that  the  defendant  could  be  convicted  without  the  means 


STATE  V.   MORROW.  397 

of  procuring  the  abortion,  or  attempting  to  procure  it,  being 
such  as  were  set  out  in  the  indictment.  Moreover,  there  was  not 
the  slightest  evidence  tending  to  show  that  the  defendant  either 
used  or  employed,  or  advised  the  use  or  employment,  of  any  in- 
strument, involving  force,  to  cause  the  abortion;  and,  as  the 
well-settled  rule  is  that  the  charge  of  a  circuit  judge  must  be 
understood  as  applying  to  the  case  as  made  by  the  evidence,  we 
cannot  consider  the  charge  here  as  open  to  the  objection  made  by 
the  tenth  exception. 

Again,  even  if  the  jury  had  believed  that  the  abortion  was  in 
fact  caused  by  the  use  of  instruments,  involving  the  application 
of  some  force,  rather  than  by  the  drugs  taken  as  alleged  in  the 
indictment,  and  had  at  the  same  time  believed  that  the  defendant 
had  advised  the  use  of  such  drugs  with  intent  to  bring  about 
abortion,  the  jury  should  still  have  rendered  a  verdict  of  guilty 
under  the  second  count  of  the  indictment;  for  it  is  quite  clear 
that  the  second  section  of  the  act  does  not  require  that,  in  order 
to  constitute  the  offence  there  denounced,  the  means  resorted  to 
should  prove  effective  to  accomplish  the  purpose  intended.  The 
offence  consists  in  the  use  of  the  means  mentioned  in  the  act, 
with  the  intent  to  cause  abortion,  and  it  is  immaterial  whether 
such  means  effected  the  purpose  intended  or  not.  We  are  of  opin- 
ion, therefore,  that  the  tenth  exception  cannot  be  sustained. 

All  of  the  remaining  exceptions,  in  different  forms,  impute 
error  to  the  circuit  judge  in  overruling  the  plea  to  the  jurisdic- 
tion; but  as  the  second  and  seventh  exceptions  seem  to  imply 
that  it  was  necessary,  in  order  to  constitute  the  offence  charged, 
that  some  force  or  duress  of  some  kind  should  have  been  used  to 
induce  Colie  Fowler  to  use  the  means  resorted  to  for  the  purpose 
of  causing  the  abortion,  we  will  first  consider  the  point  thus 
made.  To  dispose  of  this  point,  it  is  quite  sufficient  to  say  that 
the  act  under  which  the  defendant  was  indicted  plainly  does  not 
contemplate  any  ingredient  of  that  kind  in  the  offence  there 
made  punishable  in  the  manner  therein  prescribed.  There  is  not 
a  word  in  either  section  of  the  act  which  signifies  that  the  legisla- 
ture intended  that  the  use  of  force  or  duress  in  any  form  was  an 
element  in  the  offence.  On  the  contrary,  the  act  plainly  shows 
that  no  such  element  was  contemplated  as  constituting  any  part 
of  the  offence.  It  is  obvious  from  a  mere  reading  of  the  act,  and 


398  SPECIFIC   CRIMES. 

no  argument  can  make  it  plainer.     Indeed,  this  point  was  not 
mentioned  in  the  argument. 

The  remaining  exceptions  may  be  considered  together.  The 
question  which  these  exceptions  present  is  thus  stated  in  the  argu- 
ment of  counsel  for  appellant:  "Whether  the  court  of  general 
sessions  for  Kichland  county,  S.  C.,  had  jurisdiction  to  try  the  de- 
fendant for  his  alleged  violation  of  the  statutes  of  this  State;  he 
having  been,  at  the  time  of  the  commission  of  the  only  overt  acts 
charged  upon  him,  a  citizen  of,  and  actually  in,  another  State." 
We  do  not  think  that  this  is  a  precisely  accurate  statement  of  the 
question  as  it  is  presented  by  the  record  in  this  case,  for  there 
was  evidence  tending  to  show  that  the  defendant  had  had  sexual 
intercourse  with  this  unfortunate  girl,  likely  to  result  in  preg- 
nancy; that  when  she  discovered  her  condition,  and  communi- 
cated the  same  to  defendant,  he  then  formed  the  intention  of 
using  means  to  cause  an  abortion;  that  the  intention  thus  con- 
ceived was  attempted  to  be  carried  out  by  applying  to  a  physician 
to  know  whether  the  drug  which  he  had  procured  to  effect  his 
purpose  would  be  sufficient  to  effect  his  object;  and  that  such 
drug  was  taken  by  the  girl  at  his  instance  and  by  his  advice. 
True,  he  attempted  to  disguise  what  the  jury  under  the  evidence, 
might  well  have  regarded  as  his  real  purpose,  by  saying  to  the 
physician  that  he  had  a  little  lady  friend  who  had  missed  her 
regular  monthly  period,  and  desired  to  know  what  would  be  the 
best  thing  to  bring  it  on;  but  his  remark  to  the  doctor  that  the 
girl  was  awfully  scared  about  it,  and  would  not  have  her  condi- 
tion known  for  anything  in  the  world,  coming,  as  it  did,  from  a 
man  who  was  in  no  wise  related  to  the  girl,  and  only  temporarily 
resident  in  Columbia,  would  have  well  warranted  the  jury  in  con- 
cluding that  the  real  object  of  the  defendant  was  to  obtain  some- 
thing that  would  cause  abortion,  and  that  he  did  procure  a  cer- 
tain drug,  which  the  girl  used,  by  his  advice,  for  the  purpose  of 
causing  the  abortion.  All  this  occurred  in  the  city  of  Columbia, 
in  this  State ;  and  therefore  it  is  not  correct  to  say,  as  is  said  in  the 
statement  of  the  question  above  quoted  from  the  argument  for 
the  appellant,  that  he  was,  at  the  time  of  the  commission  "of  the 
only  overt  acts  charged  upon  him,  a  citizen  of,  and  actually  in, 
another  State."  Under  this  view  of  the  case,  there  would  be  no 
ground  for  the  plea  to  the  jurisdiction,  and  this  would  be  conclu- 


STATE  V.   MORROW.  399 

sive  of  this  appeal  so  far  as  the  question  of  jurisdiction  is  con- 
cerned. 

In  deference,  however,  to  the  zeal  and  ability  with  which  this 
appeal  has  been  prosecuted,  we  will  not  decline  to  consider  the 
question  as  it  is  formulated  in  the  argument  of  counsel.  For  this 
purpose  only,  we  will,  for  the  present,  disregard  the  testimony 
above  alluded  to  as  to  what  occurred  in  Columbia,  and  consider 
the  case  as  if  the  only  "overt  acts,"  as  they  are  somewhat  incor- 
rectly termed,  were  committed  in  the  city  of  Washington,  Dis- 
trict of  Columbia,  though  we  must  say  it  is  somewhat  difficult  to 
separate  the  intention  (which  there  was  evidence  tending  to  show 
was  originally  formed  in  Columbia)  from  the  acts  done  in 
Washington  in  pursuance  of  such  intention.  Assuming,  how- 
ever, for  the  purposes  of  this  discussion  only,  that  there  was  no 
evidence  of  any  act  done,  in  pursuance  of  an  intention  to  effect 
an  abortion,  except  such  acts  as  were  done  by  the  defendant  in 
the  city  of  Washington,  then,  if  the  acts  there  done  were  in- 
tended to  take  effect  in  this  State,  and  did  there  actually 
take  effect,  we  still  think  the  court,  in  this  State,  had 
jurisdiction  of  the  offence  charged.  The  evidence  leaves  no 
doubt  that,  after  the  defendant  left  this  State,  and  returned  to 
Washington,  he  procured  from  a  druggist  there  certain  drugs 
in  the  shape  of  pills,  which  he  sent,  through  the  agency  of  the 
United  States  mail,  to  Colie  Fowler,  with  the  advice  to  use  them 
for  the  purpose  of  bringing  about  an  abortion ;  that  she  received 
the  pills  so  sent,  and  used  them  according  to  the  advice  given  her 
by  the  defendant;  and  that  the  abortion  did  take  place,  which 
resulted  in  the  death  of  said  Colie  Fowler.  Under  this  state  of 
facts,  the  question  is  whether  the  courts  of  this  State  could  take 
jurisdiction.  There  can  be  no  doubt  that  it  is  the  duty  of  a  State  to 
protect,  as  far  as  practicable,  the  lives  and  persons  of  its  citizens 
and  others  temporarily  resident  therein  against  unlawful  violence 
or  injury,  whether  the  person  committing  such  violence  or  inflict- 
ing such  injury  be  a  citizen  of  this  State  at  the  time,  or  not.  If 
such  person  go  beyond  the  jurisdiction  after  committing  the  act, 
or  be  and  remain  beyond  the  limits  of  the  State  when  the  unlaw- 
ful act  is  committed,  it  may  be  difficult,  and  oftentimes  impos- 
sible, to  obtain  jurisdiction  of  the  person  of  the  party  committing 
the  act,  which  would  be  necessary  to  give  jurisdiction.  But  juris- 


400  SPECIFIC   CRIMES. 

diction  of  the  person  and  jurisdiction  of  the  subject-matter  are 
two  entirely  distinct  and  different  things;  and  where,  as  in  this 
case,  the  party  charged  voluntarily  returns  to  this  State,  and 
thereby  submits  his  person  to  the  jurisdiction  of  the  courts  of  this 
State,  we  see  no  reason  why  he  may  not  be  tried  and  punished 
for  any  violation  of  the  personal  rights  of  any  of  the  citizens  of 
this  State,  entitled  to  the  protection  of  its  laws,  even  though  the 
act  by  which  such  violation  was  caused  was  originally  put  in 
motion  beyond  the  limits  of  the  State,  provided  the  effect  thereby 
intended  reached  the  person  for  whom  it  was  intended  while  in 
this  State.  If  the  defendant  procured  the  pills  in  Washington, 
and  transmitted  them  by  mail  to  the  said  Colie  Fowler,  with  the 
advice  for  them  to  be  taken  for  the  purpose  of  bringing  about  an 
abortion,  and  she  received  and  took  them  in  this  State,  in  con- 
templation of  law  it  was  the  same  thing  as  if  the  defendant,  in 
person,  had  brought  the  pills  to  Columbia,  and  there  delivered 
them  to  Colie  Fowler;  for  while  it  is  quite  true,  as  a  general 
proposition,  that  the  principal  is  not  liable  criminaliter  for  the 
unlawful  act  of  his  agent,  yet,  if  the  act  done  by  the  agent  is  in 
pursuance  of  the  authority  of  the  principal, — done  by  his  au- 
thority,— the  principal  is  liable.  This  doctrine  has  been  expressly 
recognized  and  acted  upon  by  the  courts  of  this  State  in  the  case 
of  State  v.  Anone,  2  Nott  &  McC.  27,  where  the  owner  of  a  store 
or  shop  was  convicted  of  trading  with  a  slave,  though  the  act  of 
trading  was  done  by  a  clerk,  in  his  employment,  in  the  absence  of 
the  employer;  the  evidence  being  sufficient  to  show  that  such 
trading  was  authorized  by  the  employer.  The  same  doctrine 
was  also  fully  recognized  in  the  case  of  State  v.  Borgman,  Id. 
34,  and  State  v.  Williams,  3  Hill  (S.  C.),  94,  though  in  the  last 
two  cases  the  defendants  escaped  conviction  solely  on  the  ground 
that  the  evidence  was  insufficient  to  show  that  the  employer  had 
authorized  or  directed  the  clerk  to  do  the  unlawful  act  charged. 
Upon  the  same  principal,  it  seems  to  us  that  when  the  defendant 
procured  the  pills  in  Washington,  and  put  them  in  the  mail  to  be 
delivered  to  Colie  Fowler  in  Columbia,  for  the  unlawful  purpose 
charged,  it  was,  in  contemplation  of  law,  the  same  thing  as  if  he 
had  there  delivered  the  pills,  to  the  woman  for  whom  they  were 
intended,  in  his  own  proper  person.  Instead  of  coming  in  person 
to  Columbia  to  deliver  the  pills,  he  simply  employed  the  agency 


STATE  V.  MORROW.  401 

of  the  mail  to  do  the  act  which  he  desired  to  have  done,  and  which 
was  done  by  his  express  authority  and  direction,  in  this  State. 
So  far  as  we  are  informed,  there  is  no  authority  in  this  State  as  to 
the  question  of  jurisdiction,  but  authorities  elsewhere,  which, 
though  not  binding  upon  us,  are  entitled  to  the  most  respectful 
consideration,  have  been  cited  to  show  error  in  overruling  the 
plea  to  the  jurisdiction.  It  seems  to  us  that  the  authorities  thus 
cited  do  not  support  defendant's  contention;  and,  on  the  other 
hand,  we  find  authorities  elsewhere  supporting  the  views  which 
we  have  taken,  as  will  be  presently  shown. 

It  is  conceded  in  the  argument  for  appellant,  and  properly  con- 
ceded, as  the  authorities  abundantly  support  the  proposition,  that 
"if  one  sends  an  infernal  machine  from  one  State  to  another,  or 
shoots  from  one  to  another,  and  kills  a  human  being,  or  sends 
poison  from  one  State  to  another,  to  be  administered  to  a  person, 
and  the  result  is  the  destruction  of  human  life,  such  offender  may 
be  tried  in  the  State  where  the  death  happened;"  but  the  at- 
tempt is  made  by  appellant's  counsel  to  show  that  this  proposi- 
tion of  law  applies  only  in  cases  where  the  offence  charged  is  an 
offence  at  common  law,  and  does  not  apply  in  a  case  like  the 
present,  which  is  a  mere  statutory  offence.  It  would  unneces- 
sarily protract  this  opinion  to  consider  whether  the  crime  of 
abortion  was  an  offence  at  common  law,  or  is  a  mere  creature  of 
statute, — a  question  which  does  not  seem  to  be  very  clearly 
settled  by  the  authorities;  and  we  will  assume  for  the  present 
that  abortion  is  a  mere  statutory  offence,  and  proceed  to  consider 
whether  the  proposition  above  quoted  from  appellant's  argument 
is  limited  to  offences  at  common  law,  and  does  not  apply  to  cases 
like  the  present,  in  which,  as  we  have  assumed,  the  offence 
charged  is  of  mere  statutory  origin.  Two  cases  have  been  cited 
to  sustain  the  distinction  sought  to  be  drawn  by  counsel  for  the 
appellant:  State  v.  Knight,  Tayl.  (N.  C.)  44,  and  People  v.  Mer- 
rill, 2  Parker,  Grim.  R.  590.  An  examination  of  Knight's  Case 
will  show  that  the  facts  are  not  fully  reported,  and  the  headnote 
shows  that  the  only  point  there  decided  was  that  "the  legislature 
of  this  State  cannot  define  and  punish  crimes  committed  in  an- 
other State," — a  proposition  which  no  one  will  dispute.  From 
reading  the  case  it  would  appear  that  the  defendant  was  indicted 
under  a  North  Carolina  statute,  which  recites  in  its  preamble  that 
26 


402  SPECIFIC  CRIMES. 

there  is  reason  to  apprehend  that  evil-disposed  persons,  resident 
in  the  neighboring  States,  make  a  practice  of  counterfeiting  bills 
of  credit  of  the  State,  and,  by  themselves  or  emissaries,  utter  or 
vend  the  same,  with  an  intention  to  defraud  the  citizens  of  this 
State,  and  proceeds  to  enact  that  all  such  persons  shall  he  sub- 
ject to  the  same  modes  of  trial,  and,  upon  conviction,  to  the  same 
punishment,  as  if  the  offence  had  been  committed  within  the 
limits  of  the  State;  but  the  case  does  not  show  that  the  defend- 
ant was  charged  with  uttering  or  vending  such  counterfeit  bills, 
either  in  person  or  by  his  emissaries,  within  the  limits  of  the 
State  of  North  Carolina.  On  the  contrary,  it  may  be  inferred 
that  the  charge  was  for  uttering  or  vending  such  counterfeit 
bills  outside  of  the  limits  of  the  State,  for  the  manifest  object 
of  the  statute  was  to  protect  the  credit  of  the  State,  and  there  is 
not  a  word  in  it  that  seems  to  contemplate  that,  in  order  to  con- 
stitute the  offence  denounced,  the  circulation  of  such  bills  must 
be  within  the  State.  We  are  unable,  therefore,  to  see  what  ap- 
plication the  case  has  to  the  case  now  under  consideration.  In 
Merrill's  Case  the  defendant  was  indicted  for  a  violation  of  a 
statute  declaring  that  any  person  who  shall  sell  a  person  of  color, 
who  shall  have  been  forcibly  taken,  inveigled,  or  kidnapped  from 
the  State  of  New  York,  shall,  upon  conviction,  be  punished  as 
therein  prescribed.  It  appeared  that  the  defendant  had  inveigled 
a  person  of  color  from  the  State  of  New  York  to  the  city  of 
Washington,  and  there  sold  him,  and  it  was  held  that  the  courts 
of  New  York  had  no  jurisdiction,  because  the  offence  charged 
was  committed  beyond  the  limits  of  the  State  of  New  York.  It 
will  be  observed  that  the  gist  of  the  offence  charged  was  the  sale 
of  the  person  falling  within  the  class  described  in  the  statute, 
and,  as  that  took  place  beyond  the  limits  of  the  State  of  New 
York,  it,  of  course,  followed  that  the  court  of  New  York  had  no 
jurisdiction.  The  inveigling  was  no  part  of  the  offence  charged 
in  the  count  upon  which  the  case  turned,  but  was  nothing  more 
than  one  of  the  elements  in  the  description  of  the  person  whose 
sale  was  forbidden  by  the  section  under  which  that  count  of  the 
indictment  was  framed;  and  there  was  another  section  in  the 
same  statute  which  made  it  a  distinct  offence  to  inveigle  a  person 
of  color  from  the  State  with  intent  to  sell  him,  under  which  the 
court  said  the  courts  of  New  York  would  have  jurisdiction.  We 


STATE  V.   MORROW.  40$ 

do  not  see,  therefore,  how  appellant  can  derive  any  support  from 
Merrill's  Case.  It  seems  to  us  that  all  of  the  cases  cited  by  ap- 
pellant's counsel  to  sustain  the  point  now  under  consideration 
decide  nothing  more  than  the  broad  proposition,  which  no  one 
will  dispute,  that  the  courts  of  one  State  cannot  take  jurisdic- 
tion of  offences  committed  in  another  State;  but  the  question 
here  is  whether  the  offence  was,  in  the  eye  of  the  law,  committed 
within  the  limits  of  this  State.  It  seems  to  us  that  the  authori- 
ties which  we  will  now  cite  sustain  the  view  which  we  have  taken, 
in  a  previous  part  of  this  opinion,  that,  in  the  eye  of  the  law,  the 
offence  charged  was  really  committed  here,  although  the  de- 
fendant, Morrow,  was  in  the  city  of  Washington  when,  through 
an  innocent  agent,  the  United  States  mail,  he  transmitted  the 
drugs  to  Colie  Fowler,  while  in  this  State,  with  intent  to  cause 
the  abortion  charged,  and  which,  by  his  advice,  were  psed  by  her 
here.  In  1  Bish.  Grim.  Law,  sec.  110,  that  eminent  author  says: 
"The  general  proposition,  therefore,  is  that  no  man  is  to  suffer 
criminally  for  what  he  does  out  of  the  territorial  limits  of  the> 
country;  yet  one  who  is  personally  out  of  the  country  may  put  in 
motion  a  force  which  takes  effect  in  it,  and  in  such  a  case  he  is> 
answerable  where  the  evil  is  done,  though  his  presence  is  else- 
where. Thus,  if  a  man,  standing  beyond  the  outer  line  of  our 
territory,  by  discharging  a  ball  over  the  line,  kills  another  within 
it;  or,  himself  being  abroad,  circulates,  through  an  agent,  libels- 
here;  or  in  like  manner  obtains  goods  by  false  pretences;  or  does- 
any  other  crime  in  our  own  locality  against  our  laws, — he  is. 
punishable,  though  absent,  the  same  as  if  he  were  present."' 
Counsel  for  appellant  questions  this  proposition,  or  rather  the  il- 
lustration given,  so  far  as  it  implies,  by  the  language  "or  does 
any  other  crime  in  our  own  locality  against  our  laws,"  that  the 
proposition  is  applicable  to  statutory  as  well  as  common-law  of- 
fences, and  has  undertaken  to  show  that  all  the  authorities  cited 
by  the  author  to  sustain  the  text  are  either  civil  cases,  or  case* 
charging  common-law  offences,  except  the  case  of  Barkhamstead 
v.  Parsons,  3  Conn.  1,  which  was  a  qui  tarn  action.  Conceding- 
this  to  be  true,  we  do  not  see  how  this. can  help  the  appellant, 
unless  some  authority  can  be  found  which  recognizes  the  dis- 
tinction sought  to  be  drawn  between  statutory  and  common-law 
offences  in  this  respect;  and  we  do  not  find  any  such  authority, 


404  SPECIFIC   CRIMES. 

nor  are  we  able  to  perceive  any  sufficient  reason  for  any  such 
distinction.  The  mere  fact  that  the  cases  cited  by  Mr.  Bishop 
to  sustain  the  legal  principles  which  he  lays  down  happen  to  be 
cases  of  the  character  claimed  by  appellant  cannot  affect  the 
legal  principle,  which  is,  substantially,  this:  that  a  person  may 
commit  an  offence  within  this  State  by  putting  in  motion  a  force 
which  takes  effect  here,  or  by  acting  through  innocent  agents 
here,  although  the  party  charged  may  never  have  been  personally 
present  in  this  State.  To  the  same  effect,  see  1  Whart.  Grim. 
Law,  sees.  278,  604.  These  distinguished  text  writers  are  sus- 
tained by  numerous  cases,  some  of  which  we  will  cite.  In  People 
v.  Adams,  3  Denio,  190,  affirmed  by  the  court  of  appeals  in  1 
N.  Y.  173,  the  indictment  substantially  charged  the  defendant 
with  obtaining  money  under  false  pretences,  in  violation  of  a 
statute  of  the  State  of  New  York.  The  allegation,  in  substance, 
was  that  the  defendant,  by  exhibiting  a  receipt,  purporting  to  be 
signed  by  a  forwarding  agent  in  Ohio,  for  certain  produce  to  be 
forwarded  to  certain  commission  merchants  in  the  city  of  New 
York,  to  such  merchants,  induced  them  to  accept  drafts  drawn 
on  them  by  defendant  against  such  produce,  which  the  commis- 
sion merchants  afterwards  had  to  pay  out  of  their  own  funds, 
the  receipt  exhibited  being  false  and  fraudulent.  The  defendant 
filed  a  plea  to  the  jurisdiction,  alleging  that  he  was  a  citizen  of 
Ohio  and  resident  in  that  State  at  the  time  of  the  transaction 
referred  to,  and  never  had  been  in  the  State  of  New  York.  To 
this  plea  a  demurrer  was  interposed,  and  was  sustained,  the  court 
holding  the  offence  of  obtaining  money  by  false  pretences  is  com- 
mitted where  the  false  pretences  are  successfully  used,  and  where 
the  money  is  obtained,  and  that  though  the  defendant  was  ab- 
sent from  the  State  of  New  York  when  the  money  was  obtained 
by  him,  through  innocent  agents  in  that  State,  employed  by  de- 
fendant, the  offence  charged  was,  in  the  eye  of  the  law,  com- 
mitted by  defendant  in  the  State  of  New  York,  through  his  in- 
nocent agents,  although  he  was  absent  from  the  State  at  the 
time,  and  hence  the  plea  to  the  jurisdiction  could  not  be  sus- 
tained. This  case  was  elaborately  and  ably  argued  by  very  dis- 
tinguished counsel,  and  their  arguments,  which  are  fully  reported 
in  3  Denio,  present  a  full  review  of  the  authorities.  The  same 
doctrine  is  recognized  in  Reg.  v.  Garrett,  22  Eng.  Law  &  Eq. 


SPATE  V.   MORROW.  405 

611,  where  Lord  Campbell,  then  chief  justice,  said:  "A  person 
abroad  may,  by  the  employment  as  well  of  a  conscious  as  of  an 
unconscious  agent,  render  himself  amenable  to  the  law  of  Eng- 
land when  he  comes  within  the  jurisdiction  of  our  courts."  In 
State  v.  Chapin,  17  Ark.,  at  pages  565,  566,  it  is  said:  "It  is  not 
necessary  in  all  cases  that  a  man  should  be  actually  present  in 
this  State  to  make  him  amenable  to  our  laws  for  a  crime  com- 
mitted here.  If  the  crime  is  the  immediate  result  of  his  act,  he 
may  be  made  to  answer  for  it  in  our  courts,  though  actually  ab- 
sent from  the  State  at  the  time  he  does  the  act,  because  he  is  con- 
structively present,  or  present  in  contemplation  of  law."  And, 
again :  "If  a  person  absent  from  this  State  commits  a  crime  here, 
through  or  by  means  of  an  innocent  instrument  or  agent,  it 
seems  that  the  law  would  regard  him  as  personally  present,  and 
hold  him  responsible  for  the  offence."  This  case,  as  well  as  the 
case  of  People  v.  Adams,  supra,  recognizes  the  distinction  be- 
tween a  case  where  a  person  abroad  does  an  act  here  through  a 
guilty  agent  and  where  the  same  act  is  done  through  an  innocent 
agent  or  some  inanimate  agency;  for  in  the  former  case,  where 
the  act  is  a  felony,  the  guilty  agent  must  be  regarded  as  the  prin- 
cipal felon,  and  the  person  abroad  who  employs  him  should  be 
regarded  as  an  accessory  before  the  fact,  and  only  punishable 
where  he  actually  is,  at  the  time  he  incites  his  guilty  agent 
to  do  the  act,  here.  Hence  the  cases  cited  by  appellant  to  sustain 
such  a  distinction  are  not  applicable  to  this  case,  as  there  is  no 
pretence  that  the  agency  employed  by  the  defendant,  Morrow, 
to  transmit  the  drugs  from  Washington  to  Colie  Fowler,  in 
Columbia,  was  a  guilty  agent.  To  sustain  the  general  doctrine 
which  we  have  announced,  that  a  person  abroad  may  commit  a 
crime  here  through  the  agency  of  innocent  persons  here  or  in- 
animate instruments,  see  Rex  v.  Brissac,  2  East  (New  Ed.),  373; 
Noyes  v.  State,  41  N.  J.  Law,  418;  People  v.  Rathbun,  21 
Wend.,  at  page  534.  The  judgment  of  this  court  is  that  the  judg- 
ment of  the  Circuit  Court  be  affirmed. 

Com.  v.  Parker,  9  Mete.  263;  Com.  v.  Bangs,  9  Mass.  386;  State  v. 
Cooper,  22  N.  J.  Law  52;  Mills  v.  Com.,  13  Pa.  St.  630;  Slattery  v.  Peo- 
ple, 76  111.  217;  Smith  v.  State,  33  Me.  48;  Mitchell  v.  Com.,  78  Ky.  204; 
Dunn  v.  People,  29  N.  Y.  523;  Com.  v.  Wood,  11  Gray  85;  State  t\  How- 
ard, 32  Vt.  380;  Com.  v.  Leach,  156  Mass.  99;  Holland  r.  State,  131  Ind. 


406  SPECIFIC   CRIMES. 

508;  Clark,  p.  180;  Bishop,  Sees.  509,  769;  Wharton,  Sec.  592;  Hawley  & 
McGregor,  p.  289. 

NOTE.— Some  statutes  make  the  person  advising  the  taking,  supply- 
Ing  or  administering  articles  for  the  purpose  of  procuring  a  miscar- 
riage, guilty  of  an  abortion. 

Minn.  Stat.  1894,  Sec.  6545. 

NOTE. — Also  the  woman  taking  the  medicine  or  submitting  to  the  use 
of  the  article  with  the  intent  of  securing  a  miscarriage  is  guilty  of  a 
crime  in  some  States,  and  in  others  of  a  felony. 

Minn.  Stat.  1894,  Sec.  6546;  N.  Y.  Penal  Code,  Sec.  295. 

NOTE.— Some  statutes  make  the  willful  killing  of  an  unborn  quick 
child,  by  an  injury  committed  upon  the  person  of  the  mother,  man- 
slaughter in  the  first  degree. 

Minn.  Stat.  1894,  Sec.  6446. 

NOTE.— Some  statutes  make  those  administering,  providing  or  advis- 
ing a  female,  pregnant  or  not,  to  take  any  drug,  medicine,  etc.,  from 
which  the  death  of  the  woman  or  child  results,  guilty  of  manslaughter 
in  the  first  degree. 

Minn.  Stat.  1894,  Sec.  6447. 

NOTE.— But  the  woman  using  or  submitting  to  the  use  of  such,  when 
death  results  to  the  child,  is  guilty  of  manslaughter  in  the  second 
degree. 

Minn.  Stat.  1894,  Sec.  6450. 

NOTE.— Statutes  also  make  the  person  manufacturing,  giving  or  sell- 
ing an  instrument,  drug,  etc.,  for  the  purpose  of  securing  a  miscar- 
riage, guilty  of  a  felony. 

Minn.  Stat.  1894,  Sec.  6549. 

NOTE.— Statutes  also  make  the  keeping  of  indecent  articles  for  the 
purpose  of  preventing  conception  for  sale  or  distribution  a  misde- 
meanor. 

Minn.  Stat.  1894,  Sec.  6572. 

NOTE. — Also  those  who  attempt  to  conceal  the  birth  of  a  child  by  any 
disposition  of  the  dead  body  are  guilty  of  a  misdemeanor. 
Minn.  Stat.  1894,  Sec.  6548. 


STATE  V.   HUTCHIN8ON.  407 

d. 

Adultery. 

Adultery  is  unlawful  and  voluntary  sexual  intercourse 
between  parties  one  of  whom  is  married. 

STATE  v.  HUTCHINSON. 

• 

Supreme  Judicial  Court  of  Maine,  1853. 
36  Me.  261. 

APPLRTON,  J.  The  indictment  in  this  case  alleges  that  "Eleazer 
Hutchinson  of  Gardiner,  in  the  county  of  Kennebec,  on  the  first 
day  .of  November,  A.  D.,  1852,  at  Gardiner  aforesaid,  he,  the 
said  Eleazer  Hutchinson,  being  then  and  there  a  married  man 
and  having  a  lawful  wife  alive,  did  commit  the  crime  of  adultery 
with  Lucy  Hersey,  the  wife  of  one  Moses  Hersey,  by  having 
carnal  knowledge  of  the  body  of  her,  the  said  Lucy  Hersey," 
etc.  It  is  impossible  to  misunderstand  the  meaning  of  the  lan- 
guage used  in  this  indictment.  One  does  not  readily  perceive 
what  more  is  required  to  convey  to  an  ordinary  understanding  a 
clear  and  distinct  idea  of  the  nature  and  character  of  the  offence 
charged.  It  would  savor  more  of  niceness  than  of  wisdom  to  dis- 
charge the  defendant  upon  distinctions  such  as  are  raised  in  this 
case.  In  State  v.  Tibbetts,  35  Maine,  205,  there  was  no  allega- 
tion that  the  defendant  was  a  married  man,  having  a  lawful  wife 
alive,  at  the  time  when  the  offence  was  alleged  to  have  been  com- 
mitted. In  Com.  v.  Reardon,  6  Cush.  79,  Dewey,  J.,  says,  "it  is 
true,  that  if  the  party  indicted  is  himself  alleged  to  be  a  married 
man,  the  indictment  will  be  good  and  sufficient  in  form,  without 
any  allegation  that  the  person  with  whom  he  had  sexual  inter- 
course was  a  married  woman.  But  it  is  no  less  true,  that  the 
indictment  in  such  case  may  equally  allege  both  the  parties  to 
the  adultery  to  be  married  persons."  In  the  present  case  the 


408  SPECIFIC   CRIMES. 

allegation  is  full  and  distinct,  that  at  the  time  set  forth  in  the 
indictment  the  defendant  was  a  married  man.  The  offence  is 
equally  committed  in  such  case,  whether  the  woman  is  or  is  not 
married. 

Exceptions  overruled. 

State  v.  Lash,  16  N.  J.  L.  380;  Buchanan  v.  State,  55  Ala.  154;  Hel- 
frlch  v.  Com.,  33  Pa.  St.  68;  Miner  v.  State,  58  111.  59;  Com.  v.  Call,  21 
Pick.  509;  State  v.  Wallace,  9  N.  H.  515;  Cook  v.  State,  11  Ga.  53;  State 
v.  Thurstin,  35  Me.  205;  State  v.  Vallander,  57  Minn.  225;  Walker  v. 
State,  15  So.  7;  Bish.  Mar.  &  Div.,  Sec.  415;  State  v.  Armstrong,  4  Minn. 
335;  Com.  v.  Hassay,  157  Mass.  415;  Clark,  p.  312;  Bish.  I.,  Sec.  501; 
Wharton,  Sec.  1717;  Hawley  &  McGregor,  p.  277;  The  Penal  Code  of 
Pa.;  Shields,  vol.  I.,  221,  222,  228,  401,  406. 

NOTE. — Statutes  vary  in  defining  this  crime.  At  common  law  and  in 
some  jurisdictions  the  offence  is  only  committed  when  one  of  the  par- 
ties is  a  married  woman. 

Minn.  Stat.  1894,  Sec.  6556;  State  v.  Armstrong,  4  Minn.  335;  State  v. 
Lash,  16  N.  J.  L.  380;  Leviticus,  xx.,  10;  Deuteronomy,  xxv.,  22,  28; 
Wharton,  Sees.  1719,  1720;  Hawley  &  McGregor,  p.  277. 


Abduction. 

Abduction  is  the  taking  of  a  female  child  for  marriage  or 
prostitution,  against  her  will  or  that  of  her  lawful  custo- 
dian. 

Henderson  v.  People,  124  111.  607;  State  v.  Stoyell,  54  Me.  24;  State  v. 
Ruhl,  8  la.  447;  People  v.  Demousset,  71  Cal.  611;  State  v.  Jamison,  38 
Minn.  21;  State  «.  Wilkinson,  121  Mo.  485;  People  v.  Parshall,  6  Park 
Cr.  Rep.  129;  State  v.  Gibson,  19  S.  W.  980;  Couch  v.  Com.,  29  S.  W.  29; 
State  v.  Johnson,  22  S.  W.  463;  Bunfelle  v.  People,  39  N.  E.  565;  Minn. 
Stat.  1894,  Sec.  6529;  Wharton,  Sec.  586;  Clark,  p.  222;  Bishop  I.,  Sec. 
555;  Hawley  &  McGregor,  p.  165. 


STATE  V.   HUTCHIN80N.  409 

f. 

Incest. 

When  persons  within  the  degrees  of  consanguinity 
within  which  marriages  are  declared  to  be  incestuous  and 
void,  intermarry  or  commit  adultery,  or  fornication  with 
each  other,  each  has  committed  the  crime  of  incest. 

State  v.  Chambers,  87  la.  1;  State  v.  Herges,  55  Minn.  464;  Com.  v. 
Goodhue,  2  Mete.  193;  People  v.  Harden,  1  Park  Cr.  Rep.  344;  Noble  v. 
State,  22  Ohio  St.  541;  State  v.  Schaunhurst,  34  la.  547;  Baker  v.  State, 
30  Ala.  521;  People  v.  Burwell,  63  N.  W.  986;  Porath  v.  State,  63  N.  W. 
1061;  People  v.  Shutt,  56  Mo.  11;  Minn.  Stat.  1894,  Sec.  6553;  Bishop  I., 
Sec.  502;  Clark,  p.  319;  Wharton,  Sec.  1749;  Hawley  &  McGregor,  p.  286. 

g- 
Sodomy,  Bestiality,  Buggery. 

Sodomy,  bestiality,  buggery  or  the  crime  against  nature, 
is  unnatural  copulation  of  two  persons  with  each  other,  or 
of  a  human  being  with  a  beast. 

People  v.  Hodgkin,  94  Mich.  27;  Prindle  v.  State,  31  Tex  Cr.  R.  551; 
People  t'.  Moore,  103  Cal.  508;  Com.  v.  Dill,  160  Mass.  536;  Proper  v. 
State,  85  Wis.  615;  Minn.  Stat.  1894,  Sees.  6554-6555;  Bishop  I.,  Sec.  503; 
Clark,  p.  192;  Wharton,  Sec.  579;  May,  203;  4  Blackstone  Com.,  *  pp. 
205,  215  (Lewis's  Edition). 

h. 
Fornication. 

Fornication  is  the  willing  and  unlawful  sexual  inter- 
course of  an  unmarried  person  with  another. 

Smithman  v.  State,  27  Aid.  23;  State  v.  Rahl,  33  Tex.  77;  Territory  v. 
Jasper,  7  Mont.  1;  Territory  v.  Whitcomb,  1  Mont.  359;  Bish.  I.,  Sees. 
38,  39;  Clark,  p.  316;  Wharton,  Sec.  1747. 


410  SPECIFIC   CRIMES. 

NOTE.— By  the  Minnesota  statutes,  if  any  man  and  a  single  woman 
cohabit,  they  are  guilty  of  fornication. 
Hood  v.  State,  56  Ind.  271;  Minn.  Stat.  1894,  Sec.  6557. 


1. 
Gambling  and  Lotteries. 

All  the  law  respecting  gambling  and  lotteries  is  found  in 
the  codes  of  the  respective  States,  as  they  are  purely  statu- 
tory crimes. 

State  v.  Moren,  48  Minn.  555;  Minn.  Stat.  1894,  Sees.  6576,  6595;  N.  Y. 
Penal  Code,  Sees.  265,  460;  Wharton,  Sec.  1465  et  seq. 

5.  CRIMES  AGAINST  RELIGIOUS  LIBERTY. 
a. 

Sabbath  Breaking. 

Most  jurisdictions  have  statutes  defining  what  acts  will 
constitute  Sabbath  breaking  in  that  they  violate  the  peace 
of  the  Sabbath. 

Minn.  Stat.  1894,  Sees.  6558-6568;  2  Bish.  Or.  Law,  Sec.  1188;  N.  Y. 
Bish.  I.,  Sec.  793;  Wharton,  Sec.  1431. 

b. 

Violating  Sepulchre,  etc. 

Violating  sepulchre  and  remains  of  the  dead.  At  the 
common  law  it  was  a  misdemeanor  to  sell  a  dead  body  for 
dissection  or  refuse  its  burial.  It  was  also  indictable  to 
prevent  a  coroner  from  holding  an  inquest  over  a  corpse  ; 
also  the  disinterring  of  a  corpse  was  indictable. 

Minn.   Stat.    1894,   Sees.   6558-6568;   2  Biah.  Cr.    Law,  Sec.    1188;  N.   Y. 
Penal  Code,  Sees.  305-315;  Wharton,  Sec.  1432. 


PEOPLE  V.   HAGGERTY.  411 


6.  CRIMES  AGAINST  PROPERTY. 

Acts  interfering  with  the  rights  of  property. 

Crimes  against  property  are  acts  interfering  with  the 
rights  of  property  which  either  common  or  statutory  law 
define  and  punish  as  crimes. 


a. 
Arson. 

"Arson  is  the  malicious  burning  of  another's  dwelling 
house." 

(1)  Elements. 
(a)  Burning. 

The  burning  must  consist  in  the  consumption  by  ignition 
of  a  part  of  the  realty. 

PEOPLE  v.  HAGGERTY. 

Supreme  Court  of  California,  1873. 
46  Gal.  354. 

BY  THE  COURT.  This  appeal  is  from  a  judgment  pronounced 
against  the  defendant  after  indictment  and  trial  for  the  crime  of 
arson.  The  fire  was  set  in  old  rags,  saturated  with  coal  oil,  and 
lying  upon  the  floor  of  the  house,  but  was  quickly  discovered, 
and  put  out.  The  defendant  contends  that  there  was  not  a  suf- 
ficient burning  of  the  house  to  constitute  the  crime  of  arson,  and 
that  he  could  rightfully  have  been  convicted  only  of  an  attempt 
to  commit  arson. 

Upon  the  question  of  what  is  a  sufficient  burning  to  constitute 
the  crime,  Mr.  Bishop  states  the  rule  thus:  "The  word  *burn' 


412  SPECIFIC  CRIMES. 

enters  into  the  definition  of  arson  at  common  law;  and  it  occurs 
in  many  statutes.  It  means  to  consume  by  fire.  If  the  wood 
is  blackened,  but  no  fibres  are  wasted,  there  is  no  burning;  yet 
the  wood  need  not  be  in  a  blaze.  And  the  burning  of  any  part, 
however  small,  completes  the  offence,  the  same  as  of  the  whole. 
Thus,  if  the  floor  of  the  house  is  charred  in  a  single  place,  so  as 
to  destroy  any  of  the  fibers  of  the  wood,  this  is  a  sufficient  burn- 
ing in  a  case  of  arson."  (Bishop  on  Criminal  Law,  sec.  325.) 
There  was  evidence  tending  to  show  that  a  spot  on  the  floor  was 
charred,  so  as  to  destroy  the  fibers  of  the  wood  by  the  fire  set  by 
the  defendant;  and  there  was  no  evidence  directly  contradicting 
that  fact.  To  some  of  the  witnesses,  it  is  true,  the  spot  appeared 
to  be  only  blackened,  and  not  charred.  But  we  cannot  say  that 
the  verdict  was  so  contrary  to  the  evidence  as  to  justify  us  in  re- 
versing the  judgment  on  that  account. 
Judgment  affirmed. 

Com.  v.  Tucker,  110  Mass.  403;  State  v.  Hall,  93  N.  C.  571;  Graham  ». 
State,  40  Ala.  659;  Blanchett  r.  State,  24  S.  W.  507;  Com.  v.  Van- 
Schaack,  16  Mass.  104;  Com.  v.  Betton,  5  Cush.  427;  Mary  v.  State,  24 
Ark.  44;  2  Bish.  Cr.  L.,  Sees.  8-21;  4  Bl.  Com.,  *  page  220  (Lewis's  Edi- 
tion); Hawley  &  McGregor,  p.  174;  Clark,  p.  226;  Wharton,  Sec.  825; 
May,  49-54. 

NOTE. — Burning  hole  in  jail  is  arson. 

Lockett  v.  State,  63  Ala.  5;  Luke  v.  State,  49  Ala.  30. 

Contra. — People  v.  Cotteral,  18  John.  115. 


(b)  Dwelling-house. 

The  house  must  be  a  dwelling  house  and  includes  every 
building  within  the  curtilage. 

PEOPLE  v.  TAYLOR. 

Supreme  Court  of  Michigan,  1851. 
2  Mich.  250. 

WING,  J.   The  indictment  in  this  case  is  founded  upon  section 
3  of   chapter   154,  and   section    1  of   chapter    161,  title  30  of 


PEOPLE  V.   TAYLOR.  413 

the  revised  statutes.  The  first  named  section  provides  that  "every 
person  who  shall  willfully  and  maliciously  burn  in  the  night 
time,  any  barn,  stable,  shop,  or  office,  of  another,  within  the  curti- 
lage of  any  dwelling-house,"  etc. 

There  are  but  two  questions  of  any  importance  presented  by 
the  record  for  the  judgment  of  the t  court.  The  first  is  whether 
the  Circuit  Court  gave  to  the  jury  the  correct  definition  of  the 
'term  "curtilage;"  the  second  is  whether  the  court  stated  to  the 
jury  the  true  rule  of  law  by  which  they  should  be  governed,  in 
deciding  whether  the  defendant  hired  Grey  to  burn  the  barn. 
If  the  court  was  correct  in  its  views  as  expressed  on  these  points, 
it  will  not  be  necessary  to  spend  any  time  upon  the  other. 

The  proof  shows  the  relative  position  of  the  house,  barn,  and 
enclosures  on  the  farm  of  Mr.  Johns.  The  barn  is  alleged  in  the 
indictment  to  have  been  within  the  curtilage  of  the  house.  Does 
the  proof  support  this  allegation?  This  will  depend  upon  the  true 
meaning  of  the  word  curtilage.  It  is  perhaps  unfortunate  that 
this  term,  which  is  found  in  the  English  statutes,  and  which  is 
descriptive  of  the  common  arrangement  of  dwellings,  and  the 
yards  surrounding  them,  in  England,  should  have  been  perpetu- 
ated in  our  statutes.  It  is  not  strictly  applicable  to  the  common 
disposition  of  enclosures  and  buildings  constituting  the  home- 
stead of  the  inhabitants  of  this  country,  and  particularly  of 
farmers.  In  England,  the  dwellings  and  out-houses  of  all  kinds, 
are  usually  surrounded  by  a  fence  or  stone  wall,  enclosing  a  small 
piece  of  land  embracing  the  yards  and  out-buildings  near  the 
house,  constituting  what  is  called  the  court.  This  wall  is  so  con- 
structed as  to  add  greatly  to  the  security  of  the  property  within 
it;  but  as  such  precautionary  arrangements  have  not  been  con- 
sidered necessary  in  this  country,  they  have  not  been  adopted. 
Hence,  the  difficulty  in  this  case  of  giving  a  correct  interpreta- 
tion to  the  statute,  and  of  judging  whether  the  barn  as  described 
by  the  witness,  was  within  what  was  understood  by  the  legislature 
as  the  curtilage  of  the  house. 

Jacobs  in  his  Law  Dictionary  says:  "Curtilage  is  a  court-yard, 
back  side,  or  piece  of  ground  lying  near  and  belonging  to  a 
dwelling-house,  and  though  it  is  said  to  be  a  yard  or  garden  be- 
longing to  a  house,  it  seems  to  differ  from  a  garden,  for  we  find 
cum  quando  gardino  et  curtilagio."  The  definition  given  in 


414  SPECIFIC   CRIMES. 

Shepherd's  Touchstone  (page  84),  Cunningham's  Law  Dic- 
tionary, and  Webster's,  Johnson's  and  Walker's  Dictionaries,  ia 
substantially  the  same.  Mr.  Bouviere  in  his  Law  Dictionary, 
defines  it  to  be  "a  space  of  ground  within  a  common  enclosure, 
belonging  to  a  dwelling-house."  Mr.  Chitty  in  his  General  Prac- 
tice, 175,  speaks  of  its  having  been  defined  as  is  stated  by  Jacobs. 
In  the  case  of  Regina  v.  Gilbert  (1  Covington  &  Kirwan,  84),  the 
barn  was  situated  in  an  enclosure  which  was  surrounded  by  a 
general  fence,  but  the  yard  in  which  the  barn  stood  was  separ- 
ated from  the  yard  immediately  about  the  house  by  a  stone  wall ; 
it  was  held  the  barn  was  within  the  curtilage.  Mr.  Chitty,  in  re- 
marking upon  the  various  definitions  that  have  been  given  to  this 
word  says :  "In  its  most  comprehensive  and  proper  legal  significa- 
tion it  includes  all  that  space  of  ground  and  buildings  thereon, 
which  is  usually  enclosed  within  the  general  fence,  immediately 
surrounding  a  principal  messuage,  out-buildings  and  yard,  closely 
adjoining  to  a  dwelling-house,  but  it  may  be  large  enough  for  cat- 
tle to  be  levant  and  couchant  therein."  The  definitions  of  Bou- 
viere and  Chitty  do  not  strictly  agree  with  the  other  authors 
named,  yet  it  may  be  gathered  from  them  all,  that  a  curtilage  is 
not  necessarily  one  enclosure,  but  that  it  may  include  more  than 
one  yard  near  the  dwelling-house.  The  definitions  of  neither 
of  the  authors  cited  indicate  that  it  is  necessarily  a  yard  which 
embraces  the  out-buildings,  and  yet  it  may  be  so ;  and  in  England 
it  commonly  is  so,  and  the  space  about  the  house  is  spoken  of  as 
a  court.  In  this  case  the  barn  stood  eighty  feet  from  the  dwell- 
ing-house and  nearly  in  range  with  it,  east  and  west;  it  stood 
in  a  yard  or  lane  with  which  there  was  a  communication  from  the 
house  by  a  pair  of  bars.  The  space  of  ground  occupied  by  both 
buildings,  and  the  buildings  were  such  as  are  usually  included 
in  one  enclosure  in  England.  It  is  quite  manifest  from  the  stat- 
ute that  it  was  the  intention  of  the  legislature  to  protect  dwell- 
ing-houses from  the  hazards  of  fire  which  might  be  set  to  a  barn, 
office,  stable  or  shop,  standing  near  to  the  house,  as  well  as  to  pro- 
tect these  other  buildings;  we  think  it  is  our  duty  to  apply  the 
words  of  the  statute  in  such  enlarged  sense  as  will  insure  that 
protection  to  dwelling-houses  as  well  as  barns,  etc.,  which  it  ap- 
pears to  us,  was  the  manifest  intention  of  the  legislature  to  pro- 
vide. 


THE  STATE  V.   M'GOWAN.  415 

But  the  question  after  all,  is,  did  the  court  mislead  the  jury  by 
giving  an  inaccurate  definition  of  the  word  curtilage?  We  think 
it  did  not.  The  definition  read  by  the  court  from  Webster,  John- 
son, and  Walker  accords  with  that  given  by  the  legal  writers  we 
have  cited.  It  was  the  province  of  the  jury  to  apply  the  law  to 
the  facts.  The  court  was  not  bound  to  instruct  the  jury  that  there 
was  no  proof  that  the  barn  which  was  burned  had  stood  within 
the  curtilage  of  any  dwelling-house,  nor  that  the  barn  was  not 
within  the  curtilage  of  a  dwelling-house — there  was  proof  before 
the  jury  upon  that  point,  and  it  was  their  duty  to  consider  it  in 
connection  with  the  law,  and  ascertain  whether  the  barn  had 
stood  within  the  curtilage,  as  intended  by  the  statute  and  defined 
by  the  court. 

Let  it  be  certified  to  the  Circuit  Court  for  the  county  of  Oak- 
land as  the  opinion  of  this  court,  that  there  is  no  error  in  the 
rulings,  nor  in  the  charge  of  the  court  to  the  jury  as  set  forth  in 
the  record  in  this  case,  and  that  a  new  trial  be  denied. 


THE  STATE  v.  McGowAN. 

Supreme  Court  of  Errors  of  Connecticut,  1850. 
20  Conn.  245. 

CHURCH,  Ch.  J.  The  statute  of  this  State  prescribes  the  punish- 
ment of  arson,  but  it  does  not  define  the  crime.  We  look  to  the 
common  law  for  its  definition. 

.Arson,  by  the  common  law,  is  the  willful  and  malicious  burning 
of  the  house  of  another.  The  word  house,  as  here  understood,  in- 
cludes not  merely  the  dwelling-house,  but  all  out-houses  which 
are  parcel  thereof.  1  Hale,  570.  4  Bla.  Com.  221.  2  Russ.  on 
Crimes,  551. 

This  information  charges  the  accused  with  burning  a  dwelling- 
house,  and  the  question  in  the  case,  is,  whether  the  building, 
which  was  in  fact  burned  by  him,  was  a  dwelling-house,  within 
the  meaning  of  the  common  law  on  this  subject?  That  it  was  a 
dwelling-house,  as  distinguished  from  a  building  of  any  other 
kind,  is  certain. 

The  building  is  described  to  be  one  built  and  designed  for 


416  SPECIFIC   CRIMES. 

a  dwelling-house,  constructed  in  the  usual  manner.  It  was  de- 
signed to  be  painted,  but  was  not  yet  finished,  in  that  respect, 
and  not  quite  all  the  glass  were  set  in  one  of  the  outer  doors.  The 
building  had  never  been  occupied,  and  it  was  not  parcel  nor  an 
appurtenant  of  any  other. 

We  think  this  was  not  a  dwelling-house  in  such  a  sense,  as 
that,  to  burn  it,  constituted  the  crime  of  arson.  In  shape  and 
purpose,  it  was  a  dwelling-house,  but  not  in  fact,  because  it  had 
never  been  dwelt  in — it  had  never  been  used,  and  was  not  con- 
templated as  then  ready  for  the  habitation  of  man. 

Arson,  as  understood  at  the  common  law,  was  a  most  aggra- 
vated felony,  and  of  greater  enormity  than  any  other  unlawful 
burning,  because  it  manifested  in  the  perpetrator,  a  greater  reck- 
lessness and  contempt  of  human  life,  than  the  burning  of  any 
other  building,  and  in  which  no  human  being  was  presumed  to 
be.  Such  seems  to  be  the  spirit  of  the  English  cases  on  this  sub- 
ject, and  especially  the  late  case  of  Elsmore  v.  The  Hundred  of 
St.  Briavells,  8  B.  &  C.  461.  (15  E.  C.  L.  266.)  2  Kuss.  on 
Crimes,  556.  In  that  case,  Bayley,  J.,  in  speaking  of  the  build- 
ing therein  described,  says,  "It  appeared  to  have  been  built  for 
the  purpose  of  being  used  as  a  dwelling-house,  but  it  was  in  an 
unfinished  state,  and  never  was  inhabited.  There  cannot  be  a 
doubt,  that  the  building  in  this  case,  was  not  a  house  in  respect 
of  which  burglary  or  arson  could  be  committed.  It  was  a  house 
intended  for  residence,  though  it  was  not  inhabited.  It  was  not 
therefore  a  dwelling-house,  though  it  was  intended  to  be  one." 

A  dwelling-house  once  inhabited,  as  such,  and  from  which  the 
occupant  is  but  temporarily  absent,  would  not  fall  within  the 
foregoing  principle. 

It  may  not  be  necessary  to  determine  another  question,  made 
in  this  case — whether  it  appertained  to  the  court  or  the  jury  to 
determine  the  character  of  the  building?  But  we  think  it  was 
the  duty  of  the  court  to  have  instructed  the  jury  as  to  the  law 
of  the  matter,  and  leave  it  to  them  to  say  from  the  proof,  whether 
the  building  was  a  house,  within  the  meaning  of  the  law  thus  ex- 
plained. 

The  considerations  we  have  now  expressed,  induce  us  to  grant 
a  new  trial  of  this  cause. 

In  this  opinion  the  other  judges  concurred. 

New  trial  to  be  granted. 


8NYDER  V.  THE  PEOPLE.  417 

People  v.  Orcutt,  1  Park  Cr.  Rep.  252;  Smith  v.  State,  23  Tex.App.357,  5 
S.  W.  219;  Johnson  v.  State,  48  Ga.  116;  State  v.  Toole,  29  Conn.  342; 
Com.  v.  Barney,  10  Cush.  (Mass.)  478;  McGary  v.  People,  45  N.  Y.  153; 
Snyder  v.  People,  26  Mich.  105;  Mulligan  v.  State,  25  Tex.  App.  199; 
Pond  v.  People,  8  Mich.  149;  Clark,  p.  227;  Wharton,  Sec.  833;  Hawley 
&  McGregor,  p.  174. 


(c)  Another's  house. 
The  house  must  be  owned  by  another. 

SNYDEB  v.  THE  PEOPLE. 

Supreme  Court  of  Michigan,  1872. 
26  Mich.  106. 

COOLEY,  J.  The  plaintiff  in  error  was  informed  against  for 
arson,  which  is  charged  to  consist  in  the  felonious  burning,  in  the 
night  time,  of  the  dwelling-house  of  Mary  A.  Snyder.  On  the 
trial  it  appeared  that  Mary  A.  Snyder  was  his  wife,  and  defend- 
ant (below)  insisted  that  he  could  not  be  guilty  of  arson  in  burn- 
ing her  house.  He  also  claimed  to  be  the  owner  of  the  house,  in 
fact,  and  this  claim  was  submitted  to  the  jury,  who  found  against 
him.  The  prosecution,  on  the  other  hand,  gave  some  evidence 
tending  to  show  that  defendant  had  separated  himself  from  his 
wife,  and  given  up  his  residence  in  the  State.  This  evidence, 
however,  did  not  become  important  on  the  trial,  as  the  court  in- 
structed the  jury  that  a  husband  might  be  convicted  of  arson  in 
burning  his  wife's  dwelling-house,  though  residing  with  her,  and 
defendant  was  convicted  accordingly. 

The  statute  provides  that,  "Every  person  who  shall  willfully 
and  maliciously  burn  in  the  night  time,  the  dwelling-house  of 
another,"  etc.,  shall  be  punished,  etc. — Comp.  L.,  sec.  5745. 
There  are  numerous  decisions  as  to  what  is  meant  by  the  dwell- 
ing-house of  another,  as  well  at  the  common  law  as  under  like 
statutes  to  our  own.  Arson  is  an  offence  against  the  habitation, 
and  regards  the  possession  rather  than  the  property.  State  v. 
Toole,  29  Conn.,  344.  The  house,  therefore,  must  not  be  de- 

27 


418  SPECIFIC  CRIMES. 

scribed  as  the  house  of  the  owner  of  the  fee,  if  in  fact  at  the  time 
another  has  the  actual  occupancy,  but  it  must  be  described  as  the 
dwelling-house  of  him  whose  dwelling  it  then  is.  2  East  P.  C., 
1034;  4  Bl.  Com.,  220;  Whart  Or.  L.,  sec.  1638;  2  Bish.  Cr.  L., 
2d  Ed.,  sec.  24;  Holmes'  Case,  Cro.  Car.,  376;  Spalding's  Case, 
1  Leach,  217;  Commonwealth  v.  Wade,  17  Pick.,  395.  Even,  it 
seems,  though  the  occupation  be  wrongful.  Rex  v.  Wallis,  1 
Mood.  C.  C.,  344;  State  v.  Toole,  29  Conn.,  344.  It  follows  that 
a  lessee  could  not  be  guilty  of  the  felony  in  burning  the  premises 
occupied  by  him  as  such:  2  East  P.  C.,  1029;  2  Russ.  on  Cr., 
550;  McNeal  v.  Woods,  3  Blackf.,  485;  State  v.  Lyon,  12  Conn., 
487;  State  v.  Fish,  3  Dutch.,  323;  State  v.  Sandy,  3  Ired.,  570; 
3  Greenl.  Ev.,  sec.  55;  while  the  landlord,  during  such  occupa- 
tion, might  be.  2  East  P.  C.,  1023-4;  Sullivan  v.  State,  5  Stew. 
&  Port.,  175.  A  jail,  it  has  been  held,  may  be  described  as  the 
dwelling-house  of  the  jailer  living  with  his  family  in  one  part  of 
it.  People  v.  Van  Blarcum,  2  Johns.,  105;  Stevens  v.  Common- 
wealth, 2  Leigh,  683.  And  it  seems  that  the  wife,  because  of  the 
legal  identity  with  the  husband,  cannot  be  guilty  of  the  offence 
in  burning  the  husband's  dwelling,  even  though  at  the  time  liv- 
ing separate  from  him.  March's  Case,  Mood.  C.  C.,  182.  This 
would  doubtless  be  so  held  whenever  the  wife's  domicil  is  regarded 
in  law  as  identical  with  the  husband's,  which  for  many  purposes 
is  no  longer  the  case  when  they  live  separate. 

It  must  be  evident  from  this  summary  of  the  law  on  this  sub- 
ject, that  if  the  husband,  living  with  his  wife,  has  a  rightful  pos- 
session jointly  with  her  of  the  dwelling-house  which  she  owns 
and  they  both  occupy,  he  cannot,  by  common-law  rules,  be 
guilty  of  arson  in  burning  it.  It  remains  to  be  seen  whether  the 
statutes  have  introduced  any  changes  which  would  affect  the 
case. 

The  statutes  upon  which  the  question  arises,  are  those  for  the 
protection  of  the  rights  of  married  women.  But  it  is  to  be  ob- 
served, that  those  do  not  in  terms  go  beyond  the  ensuring  to  the 
wife  such  property  as  she  may  own  at  the  marriage,  and  acquire 
afterwards,  and  the  giving  to  her  the  power  to  protect,  control 
and  dispose  of  the  same  in  her  own  name,  and  free  from  the  in- 
terposition of  the  husband.  None  of  them  purports  to  operate 
upon  the  family  relations;  none  of  them  takes  from  the  husband 


8NYDER   V.    THE    PEOPLE.  419 

his  marital  rights,  except  as  they  pertain  to  property,  and  none  of 
them  relieves  him  from  responsibilities,  except  as  they  relate  to 
the  wife's  contracts  and  debts.  He  is  still  under  the  common- 
law  obligation  to  support  the  wife,  and  the  services  of  the  wife, 
which  at  the  common  law  were  regarded  as  the  consideration  for 
this  support,  are  still  supposed  to  be  performed  in  his  behalf  and 
in  his  interest,  except  where  they  are  given  to  her  individual 
estate,  or  separate  business.  The  wife  has  a  right  to  receive  her 
support  at  the  husband's  domicil,  unless  she  has  lost  it  by  mis- 
behavior, and  husband  and  wife  together  have  a  joint  interest  in 
and  control  of  the  children,  which  they  cannot  of  right  sever,  and 
which  are  not,  even  in  contemplation  of  law,  regarded  as  distinct, 
though  the  courts  are  sometimes  compelled  to  treat  them  as  if 
they  were  so,  when  difficulties  arise  which  make  legal  interven- 
tion essential  to  the  protection  and  welfare  of  the  children.  As 
regards  her  individual  property,  the  law  has  done  little  more  than 
to  give  legal  rights  and  remedies  to  the  wife,  where  before,  by  set- 
tlement or  contract,  she  might  have  established  corresponding 
equitable  rights  and  remedies,  and  the  unity  of  man  and  woman 
in  the  marriage  relation,  is  no  more  broken  up  by  giving  her  a 
statutory  ownership  and  control  of  property,  than  it  would  have- 
been  before  the  statute,  by  such  family  settlement  as  should  give- 
her  the  like  ownership  and  control.  At  the  common  law,  the 
power  of  independent  action  and  judgment  was  in  the  husband 
alone;  now  it  is  in  her  also,  for  many  purposes;  but  the  authority 
in  her  to  own  and  convey  property,  and  to  sue  and  be  sued,  is  no- 
more  inconsistent  with  the  marital  unity,  than  the  corresponding 
authority  in  him.  She  is  still  presumptively  his  agent  to  provide 
for  the  household,  and  he  is  not  deprived  of  the  rights,  or  relieved 
of  the  obligations  of  head  of  the  household,  except  as  by  their 
dealings  and  intent  to  that  effect  is  indicated. 

So  far  from  an  intent  having  been  manifested  on  the  part  of 
the  legislature  to  regard  the  family  as  simply  a  voluntary  associa- 
tion of  two  persons,  legally  independent  of  each  other,  with  their 
progeny,  several  of  the  changes  have  been  in  the  direction  of  a 
unification  of  interests.  Thus,  the  husband  is  deprived  of  all  au- 
thority to  sell,  mortgage  or  otherwise  charge  the  homestead  with- 
out the  wife's  consent,  though  his  title  thereto  may  be  complete 
and  absolute.  Const.,  Art.  XVI.,  sees.  2,  3;  Dye  v.  Mann,  10 


420  SPECIFIC   CRIMES. 

Mich.,  291;  McKee  v.  Wilcox,  11  Mich.,  358;  Ring  v.  Burt,  17 
Mich.,  465.  He  is  also  precluded  from  selling  or  encumbering 
such  personal  chattels  as  are  exempt  by  law  from  execution,  un- 
less with  her  assent  (Comp.  L.,  sec.  4465);  and  if  he  shall  attempt 
to  do  so,  she  may  bring  action  to  recover  the  same  in  her  own 
name.  Comp.  L.,  sec.  3294.  These  powers  and  privileges  in  re- 
spect to  the  husband's  property  are  not  conferred  on  the  wife  for 
her  own  benefit  exclusively,  or  in  order  to  give  her  interests  in- 
dependent of  the  husband;  but  they  are  given  her  for  the  benefit 
of  the  whole  family,  in  order  that  they  may  not  be  deprived  of 
the  reasonable  means  of  support  which  the  law  has  endeavored  to 
save  to  them,  and  to  the  end  that  they  may  be  kept  together  as  a 
family,  if  such  shall  be  their  desire  .  And  after  the  death  of  the 
husband  and  father,  the  family  unity  is  still  regarded  in  the  pro- 
tection which  is  given  to  the  homestead.  Const.,  ubi  supra. 

We  have  said  that  the  wife  is  entitled  to  support  at  the  hus- 
band's domicil,  and,  as  we  have  seen,  she  may  prevent  his  dispos- 
ing of  it.  The  statute  has  not  given  him  a  corresponding  right  to 
impede  or  preclude  conveyances  or  encumbrances  by  the  wife, 
but  nevertheless,  so  long  as  they  occupy  together,  he  is  not  to  be 
•considered  as  being  upon  the  premises  by  sufferance  merely.  He 
is  there  by  right,  as  one  of  the  legal  unity  known  to  the  law  as 
.«  family;  as  having  important  duties  to  perform,  and  responsibili- 
ties to  bear  in  that  relation,  which  can  only  be  properly  and  with 
amplitude  performed  and  borne  while  the  legal  unity  represents 
an  actuality;  as  having  rights  in  consort  and  offspring  which  can 
only  be  valuable  reciprocally  while  the  one  spot,  however  owned, 
shall  be  the  home  of  all ;  and  in  many  ways  he  still  represents  the 
family  in  important  relations  of  society  and  government.  Some 
of  the  legislation  on  the  subject  is  exceedingly  crude;  some  of  it 
has  injudiciously  given  powers  to  the  wife  in  the  disposition  of 
property  which  it  has  prudently  denied  to  the  husband ;  but  none 
of  it  makes  the  husband  a  stranger  in  law  in  the  wife's  domicil. 
The  property  is  hers  alone,  but  the  residence  is  equally  his;  the 
estate  is  in  her,  but  the  dwelling-house,  the  domus,  is  that  of 
both. 

If,  therefore,  the  husband  shall  be  guilty  of  the  great  wrong; 
to  his  wife  and  family,  of  setting  fire  to  the  house  they  inhabit, 
he  is  no  more  guilty  of  arson  in  so  doing  than  the  wife  was  at 


8NYDER   V.   THE   PEOPLE.  421 

the  common  law  for  a  like  wrong  to  the  dwelling-house  of  the 
husband.  The  case  is  a  very  proper  one  for  a  penal  statute,  but 
none  has  yet  been  enacted  to  meet  it.  The  house,  in  legal  con- 
templation, as  regards  the  offence  under  consideration,  is  the 
dwelling-house  of  the  husband  himself. 

But,  in  so  holding,  we  do  not  decide  that  if  the  family  relation 
is  broken  up  in  fact,  and  husband  and  wife  are  living  apart  from 
each  other,  whether  under  articles  of  separation  or  not,  the  same 
exemption  from  criminal  liability  can  exist.  There  is  much  rea- 
son for  holding  that  the  wife's  dwelling-house  can  be  considered 
that  of  the  husband,  only  while  he  makes  it  such  in  fact,  and  that 
there  is  no  such  legal  identity  as  can  preclude  her  house  being 
considered,  in  legal  proceedings  against  him,  as  the  dwelling  of 
"another,"  when  it  is  no  longer  his  abode.  That  case  was  not 
fairly  presented  upon  this  record,  and  was  barely  alluded  to  on 
the  argument;  and  it  must  be  left  for  the  proper  consideration 
when  it  becomes  necessary  to  decide  it.  We  confine  our  attention 
now  to  the  case  of  a  husband  in  the  practical  exercise  of  the  right 
to  reside  with  his  family  in  the  wife's  dwelling-house,  which  the 
wife,  at  the  same  time,  practically  concedes.  In  such  a  case  the 
dwelling-house  cannot  be  said  not  to  be  that  of  the  husband. 

It  follows  that  the  judgment  was  erroneous,  and  it  must  be 
reversed,  and  a  new  trial  ordered. 

The  other  justices  concurred. 

.  jt  *• .;  • .. .'    . . .  •   - 

State  v.  Lyon,  12  Conn.  486;  Bloss  v.  Tobey,  2  Pick.  320;  State  v.  Han- 
nett,  54  Vt.  83;  People  v.  Greening,  102  Cal.  384;  People  v.  Gates,  15 
Wend.  159;  Maley  v.  State,  31  S.  W.  393;  Clark,  p.  228;  Wharton,  Sec. 
830;  Hawley  &  McGregor,  p.  175. 

NOTE.— In  many  jurisdictions  it  need  not  be  the  house  of  another. 

Minn.  Stat.  1894,  Sec.  6668;  State  v.  Kurd,  51  N.  H.  176;  Clark,  p  229. 

NOTE. — In  many  jurisdictions  statutes  have  very  materially  changed 
the  common  law  principles  pertaining  to  the  crime. 

By  these  statutes  the  degree  of  the  defence  and  the  severity  of  the 
punishment  depend  upon  whether  the  premises  are  occupied  at  the 
time  by  a  human  being,  and  whether  the  act  is  committed  in  the  night 
time. 

If  the  burning  is  in  the  night  time,  of  a  dwelling  house  or  any  other 
structure  in  which  there  is  a  human  being,  it  is  arson  in  the  first 
degree. 

State  v.  Grimes,  50  Minn.  123;  Minn.  Stat.  1894,  Sec.  6668;  N.  Y.  Penal 
Code,  Sec.  486;  Clark,  p.  231. 


422  SPECIFIC   CRIMES. 

NOTE. — If  it  Is  in  the  day  time,  or  of  a  building  in  the  night  time  in 
•which  there  is  no  human  being,  the  burning  of  which  endangers  a 
building  in  which  there  is  a  human  being,  or  of  a  car,  vessel  or  struct- 
ure occupied  ordinarily  at  night  by  a  human  being,  though  no  person  is 
In  it  at  the  time,  then  it  is  arson  in  the  second  degree. 

Minn.  Stat.  1894,  Sec.  6669;  N.  Y.  Penal  Code,  Sec.  487;  Clark,  p.  231. 

NOTE.— The  third  degree  generally  consists  in  the  burning  of  prop- 
erty to  obtain  the  insurance  money,  and  all  other  willful  burnings  as 
will  not  be  arson  in  the  other  degrees. 

Minn.  Stat.  1894,  Sec.  6670;  N.  Y.  Penal  Code,  Sec.  488;  Clark,  p.  231. 

NOTE. — These  statutes  define  night  time  to  equal  the  time  between 
sunset  and  sunrise. 

N.  Y.  Penal  Code,  Sees.  488,  492;  Minn.  Stat.  1894,  Sec.  6673. 

NOTE.— A  building  to  be  any  house  or  vessel  or  other  structure  suit- 
able for  affording  shelter  for  human  beings,  or  appurtenant  to  or  con- 
nected with  a  structure  so  adapted. 

N.  Y.  Penal  Code,  Sec.  493;  Minn.  Stat.  1894,  Sec.  6674. 

NOTE. — An  inhabited  building  is  one,  any  part  of  which  has  usually 
been  occupied  by  a  person  lodging  therein  at  night. 

Minn.  Stat.  1894,  Sec.  6675;  N.  Y.  Penal  Code,  Sec.  492. 


b. 
Burglary. 

"  Burglary  at  common  law  is  the  breaking  and  entering 
of  the  dwelling  house  of  another  in  the  night  time  with  the 
intent  of  committing  a  felony  therein." 

(1)  Elements. 
(a)  Breaking. 

To  constitute  the  crime  some  breaking  is  essential,  but 
the  slightest  is  sufficient. 

McGuATH  v.  STATE. 

Supreme  Court  of  Nebraska,  1889. 
25  Neb.  780;  41  N.  W.  780. 

REESE,  Ch.  J.  The  county  attorney  of  Douglas  county  filed  an 
information  in  the  District  Court,  charging  plaintiff  in  error  with 
the  crime  of  burglary. 


M'GRATH  v.  STATE.  423 

To  this  information  he  pleaded  not  guilty,  and  upon  a  trial 
being  had  he  was  found  guilty  and  sentenced  to  the  peni- 
tentiary. 

The  cause  is  brought  to  this  court  by  proceedings  in  error;  the 
only  assignments  of  error  being,  that  the  verdict  of  the' jury  is 
not  sustained  by  sufficient  evidence  and  is  contrary  to  law,  and 
that  the  court  erred  in  overruling  the  motion  for  a  new  trial. 

The  motion  for  a  new  trial  was  based  upon  the  ground  that  the 
verdict  was  not  sustained  by  sufficient  evidence,  and  was  con- 
trary to  law. 

It  appears  from  the  testimony  of  Mr.  Joseph  Lowe,  that,  at 
the  time  of  the  commission  of  the  alleged  burglary,  he  and  one 
John  Woods  were  residing  in  a  room  on  Douglas  street,  in  the 
city  of  Omaha,  and  that  upon  the  evening  of  the  commission  of 
the  alleged  crime,  at  about  the  hour  of  nine  o'clock,  Mr.  Lowe 
went  into  his  room,  first  unlocking  the  door  thereof,  and  when  in 
the  room  he  discovered  the  form  or  outline  of  some  one  therein, 
and  at  the  same  time  came  in  contact  with  him;  that  he  with- 
drew from  the  room,  when  the  door  was  closed  by  the  person 
within,  and  which  became  locked  by  a  spring  lock.  After  with- 
drawing from  the  room  Mr.  Lowe  requested  another  person,  who 
was  in  a  room  below,  to  turn  on  the  alarm  for  the  police,  when  he 
returned  up  the  stairs  toward  the  room  where  the  person  was. 
He  was  soon  followed  by  the  individual  who  had  called  for  the 
police,  and  informed  that  the  person  in  the  room  was  perhaps 
"going  out  the  back  way."  He  then  went  around  to  the  rear  of 
the  building,  when  he  saw  plaintiff  in  error  come  out  of  the  sec- 
ond story  window  in  the  rear  of  the  house,  and  who  came  to  the 
rear  fence,  climbed  over,  and  as  he  did  so,  he  was  caught  by  Mr. 
Lowe,  and  turned  over  to  the  police. 

This  testimony  was,  to  a  great  extent,  denied  by  plaintiff  in 
error  upon  the  witness  stand,  although  he  admitted  the  arrest 
in  the  alley  at  the  rear  of  the  building. 

Assuming  the  testimony  of  Mr.  Lowe  to  be  true,  and  that  there 
is  no  doubt  of  the  identity  of  plaintiff  in  error  with  the  person  in 
the  room,  it  becomes  necessary  to  inquire  whether  or  not  the 
facts  proven  will  sustain  the  verdict  and  judgment. 

Section  48  of  the  criminal  code  provides  that,  "if  any  person 
shall,  in  the  night-season,  willfully,  maliciously,  and  forcibly 


424  SPECIFIC  CRIMES. 

break  and  enter  into  any  dwelling-house,  *  *  *  with  in- 
tent to  kill,  rob,  commit  rape,  or  with  intent  to  steal  property  of 
any  value,  or  commit  any  felony,  every  person  so  offending  shall 
be  deemed  guilty  of  burglary,"  etc. 

In  order  to  establish  the  commission  of  this  crime,  the  person 
charged  must  be  proven  to  have  forcibly  broken  and  entered 
the  building  referred  to  in  the  information. 

The  witness,  Lowe,  testified  that  the  door  was  locked,  and  that 
plaintiff  in  error  "must  have  got  in  over  the  transom."  That 
they  found  marks  of  where  he  had  got  in  where  the  dust  had 
6een  removed,  and  "where  he  had  slid  down  the  door." 

It  appears  that  the  transom  over  the  door  was  open,  and  that 
the  entry  was  made  by  climbing  over  the  door  and  through  it 
There  is  no  proof  that  the  window  through  which  plaintiff  in 
error  made  his  escape  was  closed,  or  that  he  had  opened  it. 

The  cause  was  evidently  tried  upon  the  theory  that  going 
through  the  open  transom  was  sufficient  breaking,  as  the  third  in- 
struction given  by  the  court  to  the  jury  was  as  follows: 

"3d.  To  constitute  a  crime  of  burglary,  there  must  be  either 
actual  or  constructive  breaking.  You  are  instructed  that,  if  .in 
this  case  you  believe  from  the  evidence  beyond  reasonable  doubt 
that  the  prisoner  went  into  the  complaining  witness'  room  over 
the  transom,  closed  or  unclosed,  or  that  he  gained  access  to  the 
house  by  lifting  the  latch  of  a  door,  for  the  purpose  and  with  the 
intent  of  stealing  and  committing  a  felony,  then  you  should  find 
him  guilty,  but  if  you  do  not  so  believe  then  you  should  acquit." 

It  will  be  observed  by  the  language  of  the  section  of  the  crimi- 
nal code  above  quoted,  that  no  definition  of  the  word  "break"  is 
given,  but  that  the  common  law  form  of,  "maliciously  and 
forcibly  break  and  enter,"  is  used. 

The  rule  is  well  settled  by  all  the  writers  upon  the  subject  of 
criminal  law,  as  well  as  substantially  all  the  decisions,  that  to 
commit  a  burglary  at  common  law,  or  under  the  language  of  a 
statute  similar  to  ours,  there  must  be  a  breaking  and  an  entry. 
That  the  breaking  must  be  actual,  and  not  arise  from  a  mere 
legal  construction.  And  that  an  entry  by  an  open  door  or  win- 
dow is  not  a  burglary. 

The  force  mentioned  in  the  statute  does  not  imply  a  destruc- 
tion of  any  part  of  the  building,  or  even  the  breaking  of  a  latch 


TIMMON8  V.   STATE.  425 

or  lock.  The  opening  of  a  door  or  window  or  casement;  the  pick- 
ing of  the  lock  of  the  door,  or  unlatching  and  opening  a  door; 
the  bending  aside  of  nails,  or  otherwise  unloosing  fastenings,  may 
be  burglary.  But  some  kind  of  a  breaking  is  necessary,  except, 
perhaps,  where  the  thief  enters  through  a  chimney  which  cannot 
be  further  enclosed.  See  Maxwell's  Criminal  Procedure,  104.  2 
Russell  on  Crimes,  2.  Harris'  Criminal  Law,  208.  Tiffany's 
Criminal  Law,  611.  Desty's  Am.  Crim.  Law,  sec.  141  B.  Whar- 
ton's  Am.  C.  L.,  sec.  1532.  Am.  and  Eng.  Enc.  of  Law,  Title 
Burglary. 

There  being  no  proof  of  a  forcible  breaking  and  entry,  it  fol- 
lows that  the  verdict  of  the  jury  was  not  sustained  by  sufficient 
evidence,  and  a  new  trial  must  be  had. 

The  judgment  of  the  District  Court  is  reversed,  and  the  cause 
remanded  for  further  proceedings. 

Reversed  and  remanded. 


TIMMONS  v.  STATE. 

Supreme  Court  of  Ohio,  1878. 
34  Ohio  St  426. 

THE  plaintiff  was  indicted,  convicted,  and  sentenced  for  burg- 
lary in  the  court  below. 

The  entire  testimony  in  the  case  is  not  brought  upon  the 
record,  but  the  tendency  of  so  much  thereof  as  is  necessary  to 
an  understanding  of  the  question  made  is  set  out.  From  this,  it 
appears  that  the  prisoner  was  found  in  the  dwelling-house  of  the 
prosecuting  witness  in  the  night-time;  that  the  doors  of  the  house 
were  still  locked  when  the  prisoner  was  found  therein; 
that  the  only  means  of  ingress  was  through  the  transom 
over  the  door;  that  the  transom  was  found  open  when 
the  prisoner  was  found  in  the  house;  "that  the  transom 
swings  on  its  hinges  like  an  ordinary  door;"  that  there  was  a  but- 
ton for  fastening  it,  but  that  the  transom  was  closed,  by  the  wife 
of  the  prosecuting  witness,  on  the  evening  of  the  night  of  the 
entry,  with  a  broom,  but  she  did  not  fasten  it  with  the  button. 


426  SPECIFIC   CRIMES. 

The  court  charged:  "That  if  the  jury  was  satisfied,  beyond 
a  reasonable  doubt,  as  to  all  the  other  elements  necessary  to  con- 
stitute a  burglary  (which  were  explained)  except  a  breaking,  and 
found  that  the  said  transom  was  closed  on  the  night  in  question, 
though  not  fastened,  and  that  the  prisoner  used  sufficient  force 
to  push  it  from  its  place,  so  that  it  would  swing  open,  that  that 
was  a  sufficient  breaking  in  law,  and  that  their  verdict  under 
these  circumstances,  if  satisfied  beyond  a  reasonable  doubt, 
should  be  guilty." 

It  is  assigned  for  error  that  the  court  erred  in  the  part  of  its 
charge,  as  to  the  force  that  will  constitute  a  breaking  in  burg- 
lary. 

GILMORE,  J.  It  is  contended,  in  argument  by  counsel  for 
plaintiff  in  error,  that  there  is,  in  this  case,  an  element  of  neg- 
ligence on  the  part  of  the  owner  of  the  house  entered,  which, 
under  the  circumstances  disclosed  in  the  record,  rendered  the  of- 
fence charged  a  trespass  and  not  a  burglary. 

The  law  on  the  point  is,  that  if  the  owner  leaves  his  doors  open, 
or  partly  open,  or  his  windows  raised,  or  partly  raised  and  un- 
fastened, it  will  be  such  negligence  or  folly  on  his  part,  as  is 
calculated  to  induce  or  tempt  a  stranger  to  enter;  and  if  he  does 
so  through  the  open  door  or  window,  or  by  pushing  open  the 
partly  opened  door,  or  further  raising  the  window  that  is  a  little 
up,  it  will  not  be  burglary.  4  Blackstone,  226;  Comm'rs  v. 
Stephenson,  8  Pick.  354. 

But  we  do  not  see  how  this  doctrine  can  have  any  applica- 
tion here.  The  testimony  tended  to  prove  that  in  this  case  the 
house  was  securely  fastened  in  every  respect,  except  as  to  the 
transom  in  question,  and  that  it  was  closed.  There  is  in  this  no 
evidence  of  such  negligence  on  the  part  of  the  owner  as  could 
have  induced  or  tempted  the  prisoner  to  enter.  Nor  are  we  at 
liberty  to  adopt  the  suggestion  of  counsel  that  the  transom,  after 
being  closed,  may  have  been  opened  by  currents  of  air  within  or 
without,  or  by  other  sufficient  causes,  and  that  the  prisoner  may 
thus  have  been  tempted  to  enter  through  the  open  transom,  for 
the  jury  found  that  the  transom  was  closed,  till  it  was  pushed  open 
by  the  prisoner.  There  was,  therefore,  no  such  negligence  on 
the  part  of  the  owner  of  the  house  as  affects  the  question  in  this 
case  in  any  way. 


TIMMONS   V.   STATE.  427 

This  brings  us  to  the  only  question  in  the  case.  Did  the  court 
«rr  in  charging  the  jury  that  if  the  transom  was  closed,  though 
not  fastened,  and  the  prisoner  used  sufficient  force  to  push  it 
from  its  place,  so  that  it  would  swing  open,  that  that  was  a  suf- 
ficient breaking  in  law? 

Our  statute,  defining  burglary,  provides:  "Whoever,  in  the 
night  season,  maliciously  and  forcibly  breaks  and  enters  any 
dwelling-house,"  etc.  The  word  forcibly  is  not  used  in  the 
common-law  definition,  in  which  the  words  are  "break  and 
•enter."  But  in  our  statute  the  word  forcibly  only  expresses  the 
degree  of  force  that  was  implied  at  common  law  from  the  word 
break.  Hence,  under  statute,  as  at  common  law,  there  may  be 
&  constructive  forcible  breaking,  as  where  an  entrance  is  ob- 
tained by  trickery  or  deception.  Ducher  v.  The  State,  18  Ohio, 
308. 

We  may,  therefore,  look  to  the  principles  of  the  common  law 
in  determining  what  will  constitute  a  forcible  breaking  under 
•our  statute. 

In  England,  for  more  than  two  hundred  years  it  has  been  set- 
tled that  there  can  be  no  burglary  without  an  actual  breaking. 
And  in  Sir  Matthew  Hale's  time  (1  Hale's  P.  C.  552)  these  acts 
amounted  to  an  actual  breaking,  viz :  "Opening  the  casement,  or 
breaking  the  glass  window,  picking  open  a  lock  of  a  door  with  a 
false  key,  or  putting  back  the  lock  with  a  knife  or  dagger,  un- 
latching the  door  that  is  only  latched,  and  to  put  back  the  leaf  of 
a  window  with  a  dagger,"  etc. 

In  Brown's  Case,  decided  in  1799  (2  East's  P.  C.  489),  there 
was  an  aperture  communicating  with  an  upper  floor,  which  was 
•closed  by  folding  doors,  with  hinges,  which  fell  over  it,  and  re- 
mained closed  by  their  own  weight,  but  without  any  interior 
fastening,  so  that  those  beneath  could  push  them  open  at  their 
pleasure  by  a  moderate  exertion  of  strength.  It  was  held  that  the 
pushing  open  of  these  folding  doors  was  sufficient  to  constitute  a 
breaking. 

And  it  has  subsequently  been  held  (1  Moody's  C.  C.  377)  that 
the  lifting  of  a  flap  of  a  cellar,  usually  kept  down  by  its  own 
weight,  is  a  sufficient  breaking  for  the  purpose  of  burglary.  And 
in  Rex  v.  Hall,  2  R.  &  Ry.  C.  C.  355,  it  is  held  that  where  a 
window  opens  upon  hinges,  and  is  fastened  by  a  wedge,  so  that 


428  SPECIFIC  CRIMES. 

pushing  against  it  will  open  it,  forcing  it  open  by  pushing  against 
it  is  sufficient  to  constitute  a  breaking.  And  in  Rex  v.  Haines, 
Ib.  450,  it  is  decided  that  the  pulling  down  of  the  sash  of  a 
window  is  a  breaking,  though  it  has  no  fastening  and  is  only 
kept  in  its  place  by  the  pulley-weight;  it  is  equally  a  breaking 
although  there  is  an  outer  shutter  which  is  not  put  to.  In  Rex 
v.  Hyams,  7  Car.  &  Payne,  441,  it  is  held  that  raising  a  window 
which  is  shut  down  close,  but  not  fastened,  though  it  has  a  hasp 
which  might  have  been  fastened,  is  a  breaking  of  a  dwelling- 
house. 

These  authorities  clearly  show  that  only  a  slight  degree  of 
force  is  necessary  to  constitute  a  burglarious  breaking  at  common 
law. 

The  following  American  cases  are  to  the  same  effect  as  Rex 
v.  Hyams,  above  cited.  The  State  v.  Boon,  13  Iredell,  244; 
Frank  v.  The  State,  39  Miss.  705;  The  People  v.  Edwards,  1 
Wheeler's  Or.  C.  371. 

The  principle,  as  laid  down  in  the  cases  above  cited  in  2  East 
and  1  Moody 's  C.  C.,  as  to  the  cellar  or  flap  doors  kept  down  by 
their  own  weight,  is  followed  in  the  case  of  Dennis  v.  The  Peo- 
ple, 27  Mich.  151,  where  it  is  held,  that  an  entry  into  a  build- 
ing by  raising  a  transom  window,  attached  by  hinges  above,  and 
arranged  to  fall  into  the  frame  by  its  own  weight,  when  the 
window  was  shut  into  the  frame,  so  as  to  require  some  force  to 
open  it,  is  a  sufficient  breaking,  under  the  statute  of  that  State 
punishing  the  breaking  and  entering  an  office,  shop,  etc.,  in  the 
night  time. 

No  court  or  text  writer  has  undertaken  to  define  the  exact 
degree  of  force  that  is  necessary  to  constitute  a  breaking  in 
burglary;  nor  indeed  would  it  be  practicable  to  do  so.  The  law 
on  the  subject  is  found  in  decided  cases  in  which  it  is  announced 
in  connection  with  a  given  state  of  facts,  to  which  it  is  applied; 
and,  in  that  way,  reasonable  certainty  has  been  attained  as  to 
what  facts  will,  or  will  not,  in  most  cases,  constitute  a  burglarious 
breaking.  But  there  are  cases  in  which  the  facts  are  of  such  a 
character  as  to  render  it  difficult  to  determine  whether,  in  law, 
they  constitute  a  burglary  or  a  trespass. 

But,  from  the  cases  above  cited,  it  is  plainly  the  law  that  where 
no  force  is  used,  as  in  entering  through  an  open  door  or  window, 
there  is  no  breaking,  and,  hence,  only  a  trespass. 


TIMMON8  V.  STATE.  429 

On  the  other  hand,  where  only  slight  force  is  used,  as  where 
a  flap  door,  or  a  window  is  closed  down  and  kept  in  place  only 
by  its  own  weight,  the  force  that  is  necessary  to  vertically  raise 
it  so  as  to  effect  an  entrance,  is  sufficient  to  constitute  a  bur- 
glarious breaking. 

There  may  exist  an  appreciable  difference  between  the  force 
that  would  be  required  to  vertically  raise  a  window  that  was 
closed  and  held  down  by  its  weight  and  that  which  would  be  re- 
quired to  push  open  a  closed,  but  unfastened  transom,  that  swings 
back  horizontally  on  hinges,  as  in  the  case  before  us;  and,  ad- 
mitting there  is  such  a  difference,  the  question  is,  whether  the 
force  required  to  accomplish  the  latter  is  sufficient  to  constitute  a 
burglarious  breaking?  We  think  an  affirmative  answer  may 
safely  be  given. 

The  application  of  the  law  does  not  depend  upon  the  degree  of 
the  force  used,  but  upon  the  fact  that  force  of  some  degree,  how- 
ever slight,  was  used.  The  force  required  to  push  open  the  tran- 
som in  question  was  undoubtedly  slight,  but  still  must  have  been 
an  appreciable  force,  sufficient  to  overcome  the  friction  of  the 
hinges,  occasioned  by  the  weight  of  the  transom,  and  this,  under 
the  circumstances,  is  all  that  the  law  requires. 

The  case  of  The  State  v.  Reid,  20  Iowa,  413,  is  in  point.  It 
is  there  decided  that  "the  pushing  open  of  a  closed  door,  with  the 
intent  expressed  in  the  statute,  is  a  sufficient  breaking,  within  the 
meaning  of  the  law,  to  constitute  burglary." 

We  find  no  error  in  the  charge  of  the  court,  under  which  the 
jury  had  to  find  that  the  transom  was  pushed  from  its  place, 
which  implies  some  degree  of  force,  before  they  could  find  the 
prisoner  guilty;  and  this  finding  is  not  before  us  for  review  on  the 
evidence. 

Motion  overruled. 

People  v.  Dupree,  98  Mich.  26;  People  v.  Nolan,  22  Mich.  229;  State  v. 
Moore,  22  S.  W.  1086;  State  v.  O'Brien,  81  la.  93;  Walker  v.  State,  52 
Ala.  376;  Donohoo  v.  State,  36  Ala.  281;  Com.  v.  Stephenson,  8  Pick.  354; 
Sparks  v.  State,  29  S.  W.  264;  People  v.  Curley,  99  Mich.  238;  State  v. 
Johnson,  34  La.  Ann.  48;  Robinson  v.  State,  53  Md.  159;  Sims  v.  State, 
36  N.  E.  278;  State  v.  Moore,  117  Mo.  395;  Cole  v.  People,  37  Mich.  544; 
Pitcher  v.  People,  16  Mich.  142;  Harris  v.  People,  44  Mich.  305;  Clark, 
p.  232;  Bish.  II.,  Sec.  91  et  seq;  Wharton,  Sec.  758;  Hawley  &  McGregor, 
p.  177. 


430  SPECIFIC   CRIMES. 

NOTE.— The  breaking  may  be  constructive,  as  where  one  obtains  an 
entrance  by  subterfuge;  and  an  entry  by  an  artifice  Is  a  breaking  under 
the  code. 

State  t;.  Rowe,  98  N.  C.  620;  Nlcholls  v.  State,  68  Wis.  416;  State  v. 
Mordecal,  68  N.  C.  207;  Johnston  v.  Com.,  85  Pa.  St.  54;  Ducher  v.  State, 
18  Ohio  308;  Minn.  Stat.  Sec.  6680;  N.  Y.  Penal  Code,  Sec.  499;  Clark, 
p.  234;  Wharton,  Sec.  759;  Hawley  &  McGregor,  p.  180. 


(b)  Entry. 

An  entry  by  any  part  of  the  person  or  tool,  by  which  it  is 
sought  to  accomplish  the  felony,  is  sufficient ;  but  the  entry 
of  the  tool  to  complete  the  breaking  is  not  sufficient. 

FRANCO  v.  STATE. 

Supreme  Court  of  Texas,  1875. 
42  Tex.  276. 

GOULD,  J.  This  is  an  appeal  from  a  conviction  for  burglary, 
the  questions  presented  being,  first,  was  the  entry  complete,  and 
secondly,  was  there  sufficient  evidence  of  the  intention  of  appel- 
lant to  commit  a  theft.  The  evidence  is  to  the  effect  that  about 
four  o'clock  in  the  morning,  appellant  had  raised  the  window  in 
the  dwelling  of  an  aged  lady,  and  was  holding  it  up  with  his  hand 
in  such  a  way  that  his  fingers  were  within  the  house,  his  elbow 
resting  on  the  sill  of  the  window,  and  his  body  outside  of  the 
house,  when  some  of  the  inmates  hearing  the  noise  and  approach- 
ing, he  suddenly  dropped  the  window  and  fled.  The  house  con- 
tained "property  of  value,"  and  it  was  testified  that  there  was  no 
enmity  existing  between  appellant  and  any  of  the  family.  On 
being  arrested  next  morning,  appellant  denied  that  it  was  he,  and 
on  the  trial  an  effort  was  made  to  establish  an  alibi;  but  the  evi- 
dence appears  sufficient  to  justify  the  jury  in  finding  that  he  was 
the  man  who  was  detected  at  the  window. 

The  following  are  Articles  of  the  Code  (Paschal's  Digest): 
Article  2359.  The  offence  of  burglary  is  constituted  by  enter- 
ing a  house  by  force,  threats  or  fraud,  at  night,  or  in  like  manner, 


FRANCO  V.   STATE.  431 

by  entering  a  house  during  the  day,  and  remaining  concealed 
therein  until  night,  with  the  intent  in  either  case  of  committing 
a  felony. 

Article  2360.  He  is  also  guilty  of  burglary,  who,  with  intent 
to  commit  a  felony  by  breaking,  enters  a  house  in  the  day-time. 

Article  2361.  The  entry  into  a  house  within  the  meaning  of 
Article  2359,  includes  any  kind  of  entry  but  one  made  by  the 
free  consent  of  the  occupant,  or  of  one  authorized  to  give  such 
consent;  it  is  not  necessary  that  that  there  should  be  any  actual 
breaking  to  constitute  the  offence  of  burglary,  except  when  the 
entry  is  made  in  the  day-time. 

Article  2362.  The  entry  is  not  confined  to  the  entrance  of  the 
whole  body;  it  may  consist  of  the  entry  of  any  part  for  the  pur- 
pose of  committing  a  felony;  or  it  may  be  constituted  by  the  dis- 
charge of  fire-arms,  or  other  deadly  missiles,  into  the  house,  with 
the  intent  to  injure  any  person  therein;  or  it  may  be  constituted 
by  the  introduction  of  any  instrument  for  the  purpose  of  taking 
from  the  house  any  personal  property,  although  no  part  of  the 
body  of  the  offender  should  be  introduced. 

Article  2363.  By  the  term  breaking,  as  used  in  Article  2360, 
"is  meant  that  the  entry  must  be  made  with  actual  force.  The 
slightest  force,  however,  is  sufficient  to  constitute  breaking;  it 
may  be  by  lifting  the  latch  of  the  door  that  is  shut,  by  raising  a 
window,  the  entry  at  a  chimney,  or  other  unusual  place,  the  in- 
troduction of  the  hand,  or  any  instrument  to  draw  out  the  prop- 
erty through  an  aperture  made  for  that  purpose." 

In  "common  language,"  we  do  not  say  that  one  has  entered  a 
house,  who  has  merely,  in  the  act  of  raising  a  window  from  with- 
out a  building  and  holding  it  up  with  his  hand,  placed  his  fingers 
in  the  inner  side  of  the  window,  and  therefore  within  the  house. 
But  the  Code  says:  "The  entry  is  not  confined  to  the  entrance 
of  the  whole  body."  In  the  opinion  of  a  majority  of  my  brethren, 
this  extends  the  meaning  of  the  word  as  used  in  the  definition  of 
burglary,  so  as  to  embrace  a  case  like  the  present,  where  only  the 
fingers  were  actually  within  the  house.  According  to  the  com- 
mon-law authorities  such  an  act  would  be  an  entry  sufficient  to 
constitute  burglary.  (See  Rex  v.  Davis,  Russell  &  Ryan,  499; 
Rex  v.  Briley,  Id.,  341.) 

It  is  contended  for  appellant,  that  the  clause  immediately  fol- 
lowing the  one  just  quoted,  reading  thus :  "It  may  consist  of  the 


432  SPECIFIC   CRIMES. 

entry  of  any  part  for  the  purpose  of  committing  a  felony," 
qualifies  what  precedes  it,  so  that  the  entry  of  a  small  part  of  the 
body  is  not  a  complete  entry,  unless  it  be  intended  by  that  act  or 
agency  to  commit  the  felony.  The  court  holds  this  to  be  only  an 
example,  one  case  in  which  the  entry  of  less  than  the  whole  body, 
viz:  "any  part,"  completes  the  act,  the  general  design  being  to 
commit  a  felony,  "and  that  the  effect  of  the  whole  is  to  make  the 
entrance  of  any  part  of  the  body,  however  small,  an  entry  within 
its  meaning — provided  always  that  the  intention  be  to  commit  a 
felony. 

As  to  the  second  question,  the  fact  that  the  house  was  broken 
and  entered  at  the  time  and  in  the  way  it  was,  by  one  who  fails 
to  show  any  excuse,  that  there  was  valuable  property  there  to 
be  taken,  and  no  other  known  desired  object,  are  sufficient  to 
support  the  finding  of  the  jury  that  the  intent  was  to  steal. 
Roscoe  says,  the  intent  of  the  parties  will  be  gathered  from  all 
the  circumstances  of  the  case.  Three  persons  attacked  a  house. 
They  broke  a  window  in  front  of  the  clock.  They  put  a  crowbar 
and  a  knife  through  a  window,  but  the  owner  resisting  them, 
they  went  away.  Being  indicted  for  burglary  with  intent  to 
commit  a  larceny,  it  was  contested  that  there  was  no  evidence  of 
that  intent;  Mr.  Parke,  J.,  said  that  it  was  for  the  jury  to  say 
whether  the  prisoner  went  with  intent  alleged,  or  not;,  that  per- 
sons do  not  in  general  go  to  houses  to  commit  trespass  in  the  mid- 
dle of  the  night;  that  it  is  matter  of  alleviation  that  they  had  the 
opportunity  but  did  not  commit  the  larceny,  and  he  left  it  to  the 
jury  to  say  whether,  from  all  the  circumstances,  they  could  infer 
that  or  any  other  intent.  (Roscoe  on  Ev.,  p.  367,  ref.  to  1  Levin, 
C.  C.  37.)  The  case  referred  to  is  not  accessible,  but  Archbold, 
in  a  note,  refers  to  it  and  cites  it  in  the  same  words.  That  author 
says,  even  the  very  fact  of  breaking  and  entering  in  the  night- 
time, raises  a  presumption  that  it  is  done  with  the  intent  of  steal- 
ing. Numerous  cases  might  be  cited  where  convictions  appear  to 
have  been  had  and  sustained  without  further  evidence.  (See  Rex 
v.  Price,  R.  and  R.,  450;  Rex  v.  John  Smith,  Id.,  416.  See  also 
Wharton,  Am.  Or.  Law,  Section  1600.)  Where  under  such  evi- 
dence as  there  is  in  this  case  a  jury  have  found  that  the  intent  of 
the  party  was  to  commit  theft,  the  verdict  will  not  be  set  aside  as 
unsupported. 

The  judgment  is  affirmed. 


PRICE  V.  THE  PEOPLE.  433 

Donahoo  v.  State,  36  Ala.  281;  Walker  v.  State,  63  Ala.  49;  State  v. 
McCall,  4  Ala.  643;  Mitchell  v.  Com.,  11  S.  W.  209;  Olds  v.  State,  12  So. 
Rep.  409;  Com.  v.  Glover,  111  Mass.  395;  Clark,  p.  255;  Hawley  &  Mc- 
Gregor, p.  181;  Bishop  II.,  Sec.  91  et  seq;  Wharton,  Sec.  774. 

NOTE.— "Enter"  defined  by  the  codes. 

Minn.  Stat.  1894,  Sec.  6682;  N.  Y.  Penal  Code,  Sec.  388. 


(c)  The  Intent. 

The  breaking  and  entry  must  be  with  the  intent  to  com- 
mit a  felony,  which  must  exist  at  the  time  both  of  the 
breaking  and  entering. 

PKICE  v.  THE  PEOPLE. 

Supreme  Court  of  Illinois,  1884. 
109  111.  109. 

ME.  JUSTICE  MULKEY  delivered  the  opinion  of  the  court: 

On  the  28th  of  June,  1883,  Freeman  Price,  impleaded  with 
James  Moran  and  Abel  Lindohl,  was  tried  and  convicted  in  the 
Henry  county  Circuit  Court  for  the  crime  of  burglary,  the  jury 
fixing  the  term  of  his  confinement  in  the  penitentiary  at  three 
years.  A  motion  for  a  new  trial  having  been  made  and  over- 
ruled, the  defendant  was  sentenced  by  the  court  to  the  peni- 
tentiary for  the  period  fixed  by  the  verdict.  The  accused  having 
brought  the  case  here  for  review,  asks  a  reversal  of  the  convic- 
tion, mainly  on  the  ground  it  is  not  supported  by  the  evi- 
dence. 

The  transaction  upon  which  the  indictment  is  based  occurred 
about  half -past  six  o'clock  in  the  evening  of  the  9th  of  March, 
1883,  at  the  dwelling-house  of  John  Milroy,  on  his  farm  near  the 
county  line  between  Knox  and  Henry  counties.  Milroy  testifies 
that  at  about  the  time  indicated  some  one  rapped  at  his  door  and 
inquired  the  road  to  Woodhull,  a  village  some  two  or  three 
miles  distant;  that  about  half  an  hour  afterwards  there  was  an- 
other rap  at  the  door,  and  his  wife,  Mrs.  Milroy,  asked  who  was 
28 


434  SPECIFIC   CRIMES. 

there,  to  which  the  party  rapping  replied,  "It  is  me;"  that  she 
then  inquired  if  it  was  Pete,  meaning  one  of  the  neighbors,  and 
receiving  an  affirmative  answer,  she  thereupon  opened  the  door, 
when  three  men,  with  cloths  tied  over  the  lower  part  of  their 
faces,  walked  in,  and  one  or  all  of  them  presented  pistols,  and 
said,  "Your  money  or  your  life;"  that  witness  stepped  into  the 
kitchen  to  get  a  spade  to  defend  himself  with,  where  he  was  fol- 
lowed by  the  largest  one,  who  subsequently  proved  to  be  Moran ; 
that  upon  witness  drawing  a  spade  on  Moran,  the  latter  presented 
a  pistol,  but  did  not  shoot,  nor  did  witness  strike  with  the  spade; 
that  Mrs.  Milroy  remained  in  the  first  room  with  the  other  two; 
that  upon  their  ordering  her  to  get  a  light  she  did  so,  and  handed 
it  to  one  of  them,  and  then  passed  through  the  pantry  down  into 
the  cellar,  and  from  thence  out  of  doors,  when  she  screamed  for 
help ;  that  the  parties  thereupon  left,  without  having  got  any  money 
or  other  valuables.  The  three  persons  who  thus  entered  the 
house  were  the  accused  and  his  co-defendants,  and  it  is  conceded 
that  the  latter  entered  the  house  of  Milroy,  as  stated,  for  the  pur- 
pose of  robbing  him;  but  the  plaintiff  in  error  insists,  and  we 
think  the  evidence  tends  strongly  to  show  the  fact,  that  his  ob- 
ject in  accompanying  them  was  to  expose  the  contemplated 
crime,  and  bring  the  real  perpetrators  of  it  to  justice,  and 
whether  this  is  so  or  not  is  really  the  only  question  in  the  case. 
The  gist  of  the  offence  charged  is  the  intent  with  which  the 
plaintiff  in  error  entered  Milroy's  house.  The  indictment  charges 
it  was  with  the  intent  to  steal,  and  it  is  conceded  the  facts,  as 
testified  to  by  Milroy  and  his  wife,  are  amply  sufficient  to  make 
out  a  case  against  the  accused,  if  there  was  no  evidence  explana- 
tory of  the  criminating  facts  occurring  at  the  house,  and  testified 
to  by  them,  and  it  is  therefore  unnecessary  to  detail  more  par- 
ticularly what  transpired  there.  Judging  the  case  by  what  oc- 
curred at  Milroy's  house  alone,  the  plaintiff  in  error  does  not 
stand  in  any  better  position  than  his  co-defendants,  who  are  con- 
fessedly guilty,  and  have  not  therefore  joined  in  the  writ  of 
error.  The  defence  set  up  by  the  former  is  in  the  nature  of  a 
plea  of  confession  and  avoidance.  If  he  was  really,  as  he  claims, 
acting  the  part  of  a  mere  detective  in  accompanying  the  other 
two  on  their  criminal  mission,  it  is  a  matter  of  no  significance 
that  no  difference  could  be  seen  in  his  conduct  and  the  other  two 


PRICE  V.  THE   PEOPLE.  435 

at  Milroy's  house,  for  to  have  acted  his  part  well  that  would  rea- 
sonably be  expected.  To  have  merely  stood  by  as  though  he 
were  a  silent  spectator,  would  doubtless  have  excited  the  suspi- 
cions of  his  comrades,  imperiled  own  safety,  and  possibly  have 
defeated  the  very  object  he  claims  to  have  had  in  becoming  one 
of  the  party.  The  turning  point  in  the  case  then  is,  is  the  evi- 
dence tending  to  show  plaintiff  in  error  was  acting  in  the  affair 
merely  as  a  detective,  sufficiently  strong  to  raise  a  clearly  well 
founded  doubt  of  his  guilt?  If  so,  he  ought  not  to  be  con- 
victed. 

The  accused  testifies  the  first  intimation  he  had  of  an  intention 
to  rob  Milroy  he  obtained  from  Moran,  who  came  to  him  and 
asked  him  to  help  rob  an  old  man  near  Woodhull;  that  witness 
said  to  him  first,  "that  is  not  my  business,"  but  afterwards  said, 
"I  will  see  about  it;"  that  Moran  came  to  him  again,  about  four 
months  ago,  and  asked  him  to  go,  when  he  said,  as  before,  "I  will 
see  about  it."  The  witness  was  then  asked  whether  or  not  he 
advised  with  Mr.  Byers  in  reference  to  going  with  Moran.  This 
and  other  questions  of  similar  import  were  propounded  to  the 
witness,  all  of  which,  on  objection  by  the  People,  were  held  im- 
proper, and  the  witness  was  not  permitted  to  answer  them.  The 
evidence  shows  that  Byers,  the  individual  referred  to,  wag  an 
attorney,  and  also  a  justice  of  the  peace,  and  it  was  clearly  er- 
roneous to  not  permit  the  witness  to  answer  the  questions.  It  is 
clear  enough  the  object  of  the  inquiry  was  to  show  that  he  gave 
notice  to  an  officer  of  the  law  of  the  intended  breach  of  the  Crim- 
inal Code,  which  would  have  strongly  negatived  any  criminal 
intent  on  his  part  in  going.  It  is  also  well  settled  one  may  prove 
his  own  declarations,  when  made  just  before  or  at  the  time  of 
starting  to  a  particular  place,  for  the  purpose  of  showing  his 
motives  or  object  in  going. 

But  the  error  in  excluding  this  evidence  was,  perhaps,  cured 
by  the  subsequent  testimony  of  the  witness.  Further  on  in  his 
testimony,  in  answer  to  the  question,  "Did  you  take  any  steps, 
after  you  were  informed  of  the  intended  robbery,  to  prevent  it?" 
the  witness  states  that  he  did,  by  informing  Van  Riper,  the  con- 
stable, and  Mr.  Byers;  that  on  the  day  of  the  robbery  he  called 
Van  Riper  out  of  Frederick's  store,  into  the  back  room,  and  told 
him  two  young  men  were  going  to  rob  an  old  man,  and  also  told 


436  SPECIFIC  CRIMES. 

him  what  Byers  had  said.  The  witness  then  proceeds  in  these 
words:  "I  said,  you  (meaning  Van  Riper)  had  better  tele- 
graph to  Woodhull  and  have  the  officers  ready  for  them.  He 
said,  'It  won't  do.  Let  them  go  on,  and  if  they  steal  anything 
they  will  be  caught.  If  they  see  the  officers,  they'll  skip.'  I  told 
him  these  two,  and  another  from  Oneida,  were  going  to  rob  Mil- 
roy;  that  they  were  going  at  1.40  on  that  day.  I  told  him  to  have 
officers  at  Milroy's  house.  This  was  in  Frederick's  store,  in 
Altona.  Milroy's  house  was  eight  or  twelve  miles  from  Altona." 
In  answer  to  the  further  question,  "Did  you  call  on  any  one  else 
that  day,  and  inform  them  of  the  intended  robbery?"  the  witness 
replied,  "Yes;  I  saw  Martin,  the  jeweler,  of  Altona,  and  I  was  at 
Byers'  house  for  that  purpose.  I  told  Van  Riper  in  the  fore- 
noon, and  told  him  what  Byers  had  told  me  about  it.  I  told  him 
I  had  spoken  to  Byers,  and  that  Byers  had  said,  'Let  me  know 
when  these  men  are  to  do  this,'  and  I  said  I  would.  I  said  to 
him,  'Shall  I  work  with  them?'  and  he  said  yes.  The  conversa- 
tion with  Byers  was  at  six  or  seven  o'clock  the  night  before  the 
talk  with  Van  Riper,  and  the  talk  with  Van  Riper  was  in  the 
forenoon  of  the  day  we  went  to  Milroy's.  Byers  is  the  man  that 
told  me  to  help  them,  and  encouraged  me." 

While  Byers  denies  that  Price  told  him  of  the  intended  rob- 
bery before  it  occurred,  yet  he  admits  he  called  at  his  office  next 
morning  and  told  him  all  about  what  had  happened,  and  through 
the  information  thus  given  the  parties  were  arrested  that  day. 
Moreover,  Colonel  Buswell,  ex-sheriff  of  the  county,  testifies  to 
a  conversation  with  Byers,  the  next  morning  after  the  attempted 
robbery,  in  which  the  latter  told  him  all  about  the  affair,  and 
witness  states  as  his  best  recollection  that  Byers  said  Price  had 
told  him  of  the  intended  robbery  before  the  attempt  was  made. 
Mrs.  Adams,  the  mother  of  Price,  also  testifies  that  in  a  conversa- 
tion she  had  with  Byers,  after  the  attempted  robbery  occurred, 
the  latter  said,  referring  to  her  son,  "He  did  not  do  as  he  (Byers) 
told  him ;  that  he  went  into  the  house,  when  he  told  him  to  stay 
out."  She  further  states  that  her  son  told  her  all  about  the  affair 
next  morning,  after  it  occurred.  The  details  of  this  witness'  con- 
versation with  Byers,  as  given  by  her,  notwithstanding  she  is  the 
mother  of  the  accused,  are  so  natural  and  free  from  anything  in- 
dicating they  might  have  been  manufactured  for  the  occasion,  as 


PRICE   V.    THE    PEOPLE.  437 

to  irresistibly  carry  with  them  the  conviction  that  her  statement 
is  true.  Moreover,  certain  concessions  are  made  by  Byers,  on 
cross-examination,  which  we  think  strengthen  her  testimony. 
He  fully  corroborates  her  as  to  the  time,  place  and  occasion  of 
her  conversation  with  him,  and  while  he  denies  that  Price  told 
him  beforehand  of  the  intended  robbery,  yet  in  testifying  to  his 
interview  with  Colonel  Buswell,  he  used  this  language:  "I  did 
not  tell  him  (Buswell)  that  Price  came  to  me  and  told  me  of 
the  intended  robbery.  I  think  I  told  him  that  Bob  did  not  act 
as  I  had  told  him  to."  That  Price  told  the  constable,  Van  Riper, 
of  the  intended  robbery  before  and  on  the  day  it  was  attempted, 
and  that  Price  visited  Byers  on  the  same  day,  as  he  claims,  for 
the  purpose  of  communicating  the  same  fact  to  him,  is  not  at  all 
disputed.  The  constable  fully  corroborates  Price's  statements  as 
to  the  conversation  with  him  in  the  back  room  of  Frederick's 
store,  on  the  day  of  the  attempted  robbery.  Van  Riper,  refer- 
ring to  Price,  says:  "He  called  me  in  the  back  room  of  Fred- 
erick's store,  and  said  he  had  something  to  tell  me ;  that  there  was 
to  be  a  racket  at  Milroy's,  and  wanted  me  to  get  a  squad  of  men 
and  arrest  them,"  etc. 

Waiving  all  controverted  questions,  the  undisputed  facts,  as 
appears  from  the  foregoing,  are,  that  the  accused,  on  the  day  of 
the  attempted  robbery,  went  deliberately  to  a  constable  of  the 
town  in  which  he  lived  and  told  him  all  about  the  contemplated 
crime,  giving  the  true  names  of  the  parties,  and  telling  him  when 
and  where  it  was  to  take  place,  and  the  name  of  the  intended 
victim;  that  the  attempt  was  made  at  the  very  time  and  place, 
and  by  the  parties,  stated  by  him,  and  that  on  the  following 
morning  he,  in  like  manner,  went  to  a  justice  of  the  peace  and 
told  him  all  about  what  had  been  done,  and  furnished  him  with 
the  true  names  of  the  parties  implicated,  by  means  of  which,  on 
the  same  day,  they  were  brought  to  trial,  and  were  subsequently 
convicted  of  the  crime.  That  a  same  person,  really  guilty  of 
committing  so  grave  a  crime  as  the  one  imputed  to  the  accused, 
would  thus  act,  is  so  inconsistent  with  all  human  experience  as 
not  to  warrant  the  conviction  of  any  one  under  the  circum- 
stances shown.  The  accused  is  a  mere  youth,  only  some  nineteen 
years  of  age  at  the  time  of  this  transaction,  and  the  fact  that 
some  of  his  conduct  subsequent  to  the  occurrence  tends  rather  to 


438  SPECIFIC  CRIMES. 

strengthen  the  view  taken  by  the  jury,  as  is  conceded,  yet  that 
may  well  have  resulted  from  his  youth  and  inexperience.  But 
as  to  the  exculpating  facts  above  stated,  we  see  no  rational  solu- 
tion of  them,  and  none  that  is  satisfactory  has  been  suggested  by 
counsel  for  the  People  which  would  seem  to  warrant  the  con- 
viction. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed,  and 
the  cause  remanded  for  further  proceedings  not  inconsistent  with 
what  is  here  said. 

Judgment  reversed. 

State  i?.  Moore,  12  N.  H.  42;  State  v.  Fox,  80  la.  312,  45  N.  W.  874; 
State  v.  Beal,  37  Ohio  St.  108;  Lanier  v.  State,  76  Ga.  304;  Clark,  p.  238; 
Bishop  II.,  Sec.  109  et  seq;  Wharton,  Sec.  810;  Hawley  &  McGregor, 
p.  186. 

NOTE. — By  some  statutes  an  intent  to  commit  any  crime  is  sufficient. 

Jones  v.  State,  63  Ga.  141;  Com.  v.  Glover,  111  Mass.  395;  State  v. 
Morris,  47  Conn.  179;  Jones  v.  State,  11  N.  H.  269;  McCourt  v.  People, 
64  N.  Y.  583;  Osborne  v.  People,  2  Park  583;  State  v.  Cowell,  12  Nev., 
337;  Minn.  Stat.  1894,  Sec.  6677. 


(d)  The  House. 

The  house  must,  at  common  law,  be  a  dwelling  house  or 
an  out  building  within  the  curtilage. 

ARMOUR  v.  STATE. 

Supreme  Court  of  Tennessee,  1842. 
3  Humph.  379. 

TUHLEY,  J.  delivered  the  opinion  of  the  court. 

The  prisoner  was  indicted  and  convicted  in  the  Circuit  Court 
of  Giles,  for  the  offence  of  burglary. 

The  proof  as  contained  in  the  bill  of  exceptions,  shows  that 
the  building  in  which  the  supposed  offence  was  committed,  was 
a  store-house  in  which  the  prosecutor  carried  on  the  business  and 
trade  of  vending  and  selling  merchandise:  that  it  had  two  out 


ARMOUR    V.    STATE.  439 

doors,  one  facing  the  public  square  in  the  town  of  Cornersville 
on  the  south,  the  other  a  public  street  on  the  east;  that  his  dwell- 
ing or  mansion-house  was  on  the  same  lot,  enclosed  by  a  paling, 
coming  up  to  the  two  opposite  corners  of  the  store-house,  the 
dwelling-house  being  twenty-nine  or  thirty  feet  distant  from  the 
store-house,  that  the  store-house  and  mansion-house  were  on  the 
same  lot,  and  belonged  to  him  in  his  own  right;  that  there  was 
no  connection  between  the  dwelling-house  and  store,  by  the  roof 
or  any  covered  way;  that  there  was  a  small  gate  immediately 
fronting  his  mansion-house  to  the  east,  and  also  a  large  gate  for 
wagons  between  that  gate  and  the  store-house,  through  which  he 
hauled  his  wood;  that  there  was  also  a  small  gate  immediately 
fronting  his  mansion-house ;  that  there  was  a  back  door  in  the  end 
of  his  store  opening  into  the  yard  toward  his  mansion  through 
which  he  generally  passed  from  his  mansion  to  his  store-house; 
that  he  kept  coffee  and  sugar  in  his  store  for  sale,  and  that  when 
his  family  needed  these  articles,  they  came  to  the  store  and  got 
them,  that  he  sometimes  kept  flour  for  sale  in  the  store,  and  that 
his  family  came  and  got  of  it  when  wanted;  that  there  were  no 
separate  and  distinct  parcels  kept  for  his  family  use,  but  that  it 
was  always  taken  out  of  that  kept  for  sale;  that  he  sometimes 
kept  his  saddles  in  the  store-house,  but  that  for  more  than  twelve 
months  prior  to  the  night  of  the  burglary,  there  had  been  no  one 
living  in  the  house,  and  that  no  one  during  that  time  had  slept 
there. 

And  the  question  is,  whether  this  store-house  be. such  a  dwell- 
ing-house or  part  or  parcel  thereof,  as  a  burglary  can  be  com- 
mitted in.  On  this  point  the  judge  charged,  "That  to  constitute 
the  offence  of  burglary,  the  breaking  and  entering  must  be  of  a 
mansion-house,  that  every  house  or  permanent  edifice  for  the 
dwelling  or  habitation  of  man  is  taken  to  be  a  mansion-house,  in 
which  burglary  may  be  committed,  and  that  the  term  mansion-house 
includes  the  out-houses,  such  as  ware-houses,  stables,  cow-houses  or 
dairy-houses,  though  not  under  the  same  roof  or  joining  con- 
tiguous to  the  dwelling-house,  provided  they  be  parcel  thereof; 
and  that  any  out-house  within  the  curtilage  and  not  in  fact  used 
as  part  or  parcel  of  the  mansion-house,  for  instance  a  barn,  a 
stable,  a  dog-house  or  any  other  building,  although  within  the 


440  SPECIFIC   CRIMES. 

curtilage,  if  it  be  unoccupied  or  not  used  in  connection  with  the 
dwelling-house,  or  as  part  thereof,  it  would  not  be  such  a  house 
as  burglary  could  be  committed  in;  that  the  term  curtilage  was 
defined  to  be  a  yard  or  piece  of  ground  lying  near  to  and  used 
with  the  dwelling-house,  and  embraced  within  the  same  common 
enclosure,  and  that  a  store  situate  within  the  curtilage  as  thus 
defined  and  used  as  a  store-house,  for  the  purpose  of  merchandise, 
and  connected  with  the  principal  mansion  or  dwelling-house  and 
having  entrance  with  it,  would  be  a  parcel  of  the  mansion-house 
and  be  the  subject  of  burglary." 

This  charge  is  not  sufficiently  precise  if  it  be  not  erroneous; 
more  no  doubt  from  the  intrinsic  difficulty  of  the  subject  than 
any  thing  else,  and  was  certainly  not  calculated  to  give  the  jury 
accurate  information  of  the  matter  in  controversy,  if  it  be  not 
calculated  to  mislead  them.  It  will  become  necessary  for  us  to 
examine  the  nature  of  the  offence  charged  to  have  been  com- 
mitted, with  the  view  of  ascertaining  how  far  the  charge  of  the 
circuit  judge  is  correct,  and  whether  the  finding  of  the  jury  is 
supported  by  law.  The  dwelling-house  of  an  individual  hath 
peculiar  sanctity  in  the  estimation  of  the  common  law.  It  hath 
been  called  his  castle  and  hath  many  privileges  attached  to  it. 
Persons  are  prohibited  under  severe  penalties  from  at  any  time 
entering  it,  unless  under  absolute  necessity  in  a  few  particular 
cases,  without  the  owner's  consent,  and  offences  committed  in  it 
by  strangers  have  always  been  more  severely  punished  than  if 
committed  elsewhere. 

The  offence  of  burglary,  which  can  be  committed  in  no  other 
place,  and  which  may  be  complete,  although  the  person  designing 
it,  may  be  frustrated  in  his  attempt,  is  a  felony  at  common  law 
without  benefit  of  clergy,  and  is  with  us  a  high  crime,  punishable 
by  a  long  confinement  in  the  penitentiary.  It  becomes  important 
then  to  see  that  this  privilege,  the  infraction  of  which  leads  to 
such  serious  consequences,  be  not  extended  beyond  what  neces- 
sity requires  and  the  law  designs. 

Lord  Coke  defines  a  burglar  to  be  "he  that  in  the  night  time 
breaketh  and  entereth  into  a  mansion-house  of  another,  of  intent 
to  kill  some  reasonable  creature,  or  to  commit  some  other  felony 
within  the  same,  whether  his  felonious  intent  be  executed  or 
not." 


ARMOUR   V.   STATE.  441 

It  must  be  proven  that  the  premises  broken  and  entered  were 
either  a  mansion-house  or  parcel  of  a  mansion-house.  Every 
house  for  the  dwelling  and  habitation  of  man  is  taken  to  be  a 
mansion-house,  wherein  burglary  may  be  committed.  3  Inst. 
64-5;  2  East,  P.  C.  491.  There  is  not,  and  never  has  been  any 
difficulty  in  ascertaining  what  constitutes  a  mansion  or  dwelling- 
house;  but  in  as  much  as  it  has  been  held  that  a  dwelling-house 
at  common  law  not  only  included  the  premises  actually  used  as 
such,  but  also  such  out  buildings  as  were  within  the  curtilage  or 
court-yard  surrounding  the  house,  great  difficulty  has  been  fre- 
quently experienced  in  deciding  what  buildings  come  within  this 
protection,  and  very  nice  distinctions  have  been  taken  on  the  sub- 
ject,, so  much  so,  that  it  is  impossible  to  extract  any  general  prin- 
ciple from  the  cases — and  it  would  be  a  hopeless  task,  to  think 
of  examining  and  comparing  them,  with  the  view  of  reconciling 
them.  So  serious  has  this  difficulty  been  felt  in  England,  that 
the  statute  of  7th  and  8th  George  4th,  ch.  29,  has  been  passed 
to  remedy  the  evil,  by  which  it  is  provided,  that  "no  building 
although  within  the  same  curtilage  with  the  dwelling-house,  and 
occupied  therewith,  shall  be  deemed  to  be  a  part  of  such  dwell- 
ing-house  for  the  purpose  of  burglary,  unless  there  shall  be  a 
communication  between  such  building  and  dwelling-house, 
either  immediate  or  by  means  of  a  covered  and  enclosed  passage, 
leading  from  one  to  the  other." 

But  this  statute  not  being  in  force  in  this  country,  we  are  left 
to  extract  our  rule  of  action  from  the  common  law  as  we  best 
may.  The  design  is  to  protect  the  peace  and  quiet  of  one's  place 
of  abode  by  day  and  by  night — and  no  extension  of  a  principle, 
enforced  by  such  heavy  penalties,  ought  to  be  made  beyond  what 
will  give  such  protection  in  a  fair  and  adequate  manner.  To  hold 
that  every  house  which  may  be  built  in  a  curtilage  or  court-yard 
of  any  extent,  whether  necessary  to  the  enjoyment  of  the  dwell- 
ing-house or  not,  whether  used  for  family  purposes  or  not,  and 
entirely  disconnected  from  the  mansion-house,  except  by  a  com- 
mon wall  or  fence,  is  part  and  parcel  of  the  dwelling-house,  is 
absurd — and  not  warranted  as  we  think  by  a  fair  construction 
of  the  cases — though,  as  has  been  observed,  it  is  difficult  if  not 
impossible  to  amalgamate  them.  As  it  is  the  dwelling  which 
is  protected,  when  the  principle  comes  to  be  extended  to  a  build- 


442  SPECIFIC   CRIMES. 

ing  not  attached  thereto  but  distinct  and  separate  from  it,  upon 
what  principle  can  it  be  held  to  be  the  subject  of  the  burglary — 
imless  it  be  that  it  is  quasi  a  dwelling-house?  and  how  can  it  be 
such,  unless  used  for  domestic  purposes,  or  purposes  necessary 
for  the  complete  enjoyment  of  the  dwelling? 

Hawkins  in  his  Pleas  of  the  Crown,  page  104,  says:  "All 
outbuildings,  such  as  barns,  stables,  dairy-houses,  etc.,  adjoining 
to  a  house  are  looked  upon  as  a  part  thereof."  The  words,  etc., 
upon  no  principle  of  fair  construction  can  be  held  to  mean  other 
than  those  of  the  same  class  spoken  of,  to  wit:  offices  attached  to 
the  dwelling-house,  and  intended  for  the  comfort  and  con- 
venience of  the  owner,  to  be  used  in  housekeeping  and  not  for 
a  distinct  and  separate  purpose  altogether,  as  for  trading  or  manu- 
facturing. 

Archbold  in  his  Treatise  on  Criminal  Law,  page  286,  says: 
"The  term  dwelling-house  includes  in  its  legal  signification,  all 
out-houses  occupied  with  and  immediately  communicating  with 
the  dwelling-house."  Can  a  house  used  for  other  than  domestic 
purposes,  be  said  to  be  occupied  with  the  dwelling-house?  Surely 
not,  for  the  complete  and  ample  enjoyment  of  either  does  in  no 
degree  depend  upon  the  other.  Shall  it  be  said  that  a  man  has 
not  complete  and  ample  enjoyment  of  his  dwelling-house,  if  he 
be  disturbed  in  that  of  his  handicraft  shop,  his  ware-house  for  the 
storage  of  other  people's  merchandise,  his  store-house  for  the 
retailing  of  goods,  although  these  may  be  in  the  curtilage,  but 
distinct  and  separate  from  his  mansion?  We  think  not — we 
know  of  no  principle  justifying  such  a  position,  but  hold  the  law 
to  be,  that  an  out-house,  though  within  the  curtilage  is  not  a  part 
or  parcel  of  the  mansion  or  dwelling-house,  unless  it  be  used  by 
the  family  or  some  part  of  it,  and  for  purposes  designed  to  pro- 
mote the  comfort,  enjoyment  and  ease  of  those  engaged  in  house- 
keeping. And  that  if  the  building  be  used  for  purposes  wholly 
distinct  and  separate,  as  it  is,  when  it  is  wholly  appropriated  to 
manufacturing,  or  to  buying  and  selling,  no  burglary  can  be  com- 
mitted in  it.  We  are  not  without  express  authorities  to  this 
point.  In  the  case  of  the  State  v.  Bryant  Ginns,  1  Nott  &  Mc- 
Cord,  583,  it  is  held  by  the  Constitutional  Court  of  South  Caro- 
lina, "That  to  break  and  enter  by  night  a  store-house  in  which 
no  one  sleeps,  which  has  no  internal  communication  with  the 


ABMOUR  V.   STATE.  443 

dwelling-house,  and  is  unconnected  with  it,  except  by  a  fence,  is 
not  burglary."  Mr.  Justice  Nott,  who  delivered  the  opinion  of 
the  court,  says:  "A  house  to  be  a  parcel  of  the  mansion-house, 
must  be  some  how  connected  with  or  contributory  to  it,  such  as 
kitchen,  smoke-house,  or  such  other  as  is  usually  considered  as  a 
necessary  appendage  of  a  dwelling-house.  It  cannot  embrace  a 
store,  blacksmith  shop,  or  any  other  building  separate  from  it 
and  appropriated  to  another  and  distinct  use.  I  admit  that  a 
store  will  be  so  considered  if  in  a  part  of  the  house,  or  under  the 
same  roof,  or  if  any  of  the  family  sleep  in  it.  And  this  view  I 
think  is  supported  by  the  best  authorities  on  the  subject."  In  the 
case  of  the  State  v.  Henry  A.  Langford,  1  Devereux  (North 
Carolina)  Rep.  253,  it  is  held,  "that  burglary  can  only  be  com- 
mitted in  a  dwelling-house  or  such  other  buildings  as  are  neces- 
sary to  it  as  a  dwelling.  Therefore,  it  is  no  burglary  to  break  the 
door  of  a  store  situate  within  three  feet  of  the  dwelling-house  and 
enclosed  in  the  same  yard."  Judge  Henderson,  who  delivered 
the  opinion  of  the  court,  says :  "The  law  throws  a  mantle  around 
the  dwelling  of  a  man,  and  protects  not  only  the  house  in  which 
he  sleeps,  but  also  all  others  appurtenant  thereto  as  parcel  or  parts 
thereof,  from  meditated  harm.  Thus  the  kitchen,  laundry, 
smoke-house,  and  the  dairy  are  within  its  protection,  for  they  are 
all  used  as  parts  of  one  whole,  each  contributing  in  its  way  to  the 
comfort  and  convenience  of  the  place  as  a  mansion  or  dwelling- 
house  ;  they  are  used  with  that  view  and  that  alone,  and  it  may  be 
admitted  that  all  houses  contiguous  to  the  dwelling  are  prima 
facie  of  that  description.  But  where  it  is  proved  that  they  are 
used  for  other  purposes,  for  labor,  as  a  work-shop;  for  vending 
goods,  as  a  store-house — this  destroys  the  presumption.  It'  then 
appears  that  they  are  there  for  purposes  unconnected  with  the 
actual  dwelling,  and  do  not  render  it  more  comfortable  or  con- 
venient as  a  dwelling.  In  short  they  are  not  a  part  or  parcel 
thereof,  but  are  used  for  other  and  distinct  purposes,  unconnected 
with  the  actual  dwelling;  the  house  as  a  dwelling  is  equally  com- 
fortable and  convenient  without  them,  as  with  them.  These  prin- 
ciples I  think  are  fully  recognized  by  authority." 

These  two  cases  are  directly  in  point;  they  are  decided  by 
courts  of  very  respectable  authority.  We  think  they  are  sup- 
ported by  reason,  and  are  not  at  war  with  English  precedent,  and 


444  SPECIFIC   CRIMES.    . 

we  are  disposed  to  go  with  them.  Such  then  being  the  law,  it 
will  be  perceived  at  once,  that  the  charge  of  the  judge  below  is 
not  sufficiently  specific,  and  in  some  respects  erroneous;  and  that 
the  verdict  of  the  jury  is  not  supported  by  the  testimony. 

The  judgment  of  the  Circuit  Court  will,  therefore,  be  reversed, 
and  the  case  remanded  for  further  proceedings. 

Hollister  v.  Com.,  60  Pa.  St.  103;  Fisher  v.  State,  43  Ala.  17;  State  v. 
Outlaw,  72  N.  C.  598;  State  v.  Potts,  75  N.  C.  129;  Mason  v.  People,  26 
N.  Y.  200;  People  v.  Dupree,  98  Mich.  26;  State  v.  Sufferin,  6  Wash.  107; 
People  v.  Aplin,  86  Mich.  393;  People  v.  Griffin,  77  Mich.  585;  State  v. 
Mordecai,  68  N.  C.  207;  State  v.  Garrison,  52  Kan.  180;  State  v.  King,  25 
S.  E.  613;  Clark,  p.  236;  Wharton,  Sec.  815;  Hawley  &  McGregor,  p. 
182;  Bishop  II.,  Sec.  104. 

NOTE. — Some  statutes  make  any  building,  any  part  of  which  is  usu- 
ally occupied  by  a  person  lodging  therein  at  night,  a  dwelling  house. 

Minn.  Stat.  1894,  Sec.  6683;  State  v.  Williams,  90  N.  C.  724;  Colbert  v. 
State,  17  S.  B.  840;  N.  Y.  Penal  Code,  Sec.  502. 

NOTE. — Different  parts  of  a  lodging  house  used  by  separate  tenants 
are  by  the  statutes  separate  dwelling  houses. 

Minn.  Stat.  1894,  Sec.  6684;  Reed  v.  State,  31  S.  W.  404;  N.  Y.  Penal 
Code,  Sec.  503. 


(e)  Night  Time. 

To  constitute  a  burglary  at  common  law,  the  breaking 
and  entry  to  commit  the  felony  must  be  in  the  night  time. 
Night  time  is  from  sunset  to  sunrise. 

PEOPLE  v.  GRIFFIN. 

Supreme  Court  of  California,  1862. 
19  Cal.  578. 

NORTON,  J.  delivered  the  opinion  of  the  court — FIELD,  C.  J. 
and  COPE,  J.  concurring. 

The  defendant  was  convicted  of  the  crime  of  burglary.  By 
the  statement  on  appeal  it  is  agreed,  that  on  the  trial  it  was 
proved  as  one  of  the  facts,  that  the  breaking  and  entering  the 
dwelling-house,  etc.,  which  constituted  the  offence,  was  done  be- 


PEOPLE   V.    GRIFFIN.  445 

tween  the  hours  of  six  and  seven  o'clock  in  the  afternoon,  on  the 
thirty-first  day  of  August,  and  that  at  the  time  there  was  light 
enough  out  of  doors  to  discern  a  man's  features  across  the 
street.  As  the  sun  at  that  date  did  not  set  until  about  half -past 
six  o'clock,  it  does  not  appear  that  it  was  proved  by  the  prosecu- 
tion that  the  offence  was  committed  in  the  night  time.  Besides, 
the  presence  of  sufficient  daylight  to  discern  a  man's  features  has 
long  been  adopted  as  a  criterion  to  determine  whether  or  not  the 
act  was  done  in  the  night  time  within  the  meaning  of  the  law 
applicable  to  the  crime  of  burglary.  (4  Bl.  Com.  299;  Com.  v. 
Chevalier,  T  Dana  Abr.  134;  State  v.  Bancroft,  10  K  H.  105.) 
On  the  facts  proved,  as  agreed  to  in  the  statement,  the  offence  in 
this  case  was  not  burglary,  and  as  the  verdict  was  against  law,  a 
new  trial  should  have  been  granted. 

Judgment  reversed  and  cause  remanded. 

Jackson  v.  State,  38  S.  W.  990;  Oshford  v.  State,  53  N.  W.  1036;  State 
v.  Bancroft,  10  N.  H.  105;  State  v.  Morris,  47  Conn.  179;  Jones  v.  State, 
63  Ga.  141;  Com.  v.  Glover,  1.11  Mass.  395;  Lewis  v.  State,  16  Conn.  32; 
Com.  v.  Williams,  2  Cush.  582;  Minn.  Stat.  1894,  Sec.  6681;  Clark,  p. 
237;  Wharton,  Sees.  806-807;  Hawley  &  McGregor,  p.  185;  Bishop  II., 
Sec.  102. 

NOTE.— By  some  statutes  there  are  three  degrees  of  burglary. 

The  first  is  where  a  person,  with  intent  to  commit  therein  a  crime, 
breaks  and  enters  a  dwelling  house  in  the  night  time,  while  there  is  a 
human  being  therein. 

1.  Being  armed  with  a  dangerous  weapon. 

2.  Arming  himself  therein  with  such  a  weapon. 

3.  Being  assisted  by  a  confederate.    Or 

4.  Who,  while  attempting  to  commit  such  a  crime,  assaults  any  one. 
Minn.  Stat.  1894,  Sec.  6677;  People  v.  Kruger,  100  Cal.  523. 

The  second  is  where  a  person,  to  commit  some  crime  therein,  breaks 
and  enters  the  dwelling  house  of  another,  in  which  there  is  a  human 
being,  under  circumstances  not  amounting  to  a  burglary  in  the  first 
degree. 

Minn.  Stat.  1894,  Sec.  6678. 

The  third,  where  a  person,  with  intent  to  commit  a  crime  therein, 
breaks  or  enters  a  building  or  room,  or,  being  in  any  building,  comm.ts 
a  crime  therein  and  breaks  out. 

Minn.  Stat.  1894,  Sec.  6679. 

NOTE.— By  statute,  in  case  a  person  enters  a  building  in  a  manner  not 
amounting  to  burglary,  with  intent  to  commit  a  felony  therein,  he  is 
guilty  of  a  misdemeanor. 

Minn.  Stat.  1894,  Sec.  6686. 


446  SPECIFIC   CRIMES. 

NOTE.— A  person  may  be  punished  for  the  crime  committed  within 
the  building,  as  well  as  for  burglary.  He  may  be  punished  for  each 
crime  separately. 

Minn.  Stat.  1894,  Sec.  6687. 


C. 
Forgery. 

"  Forgery  is  the  fraudulent  making  or  alteration  of  a 
writing  to  the  prejudice  of  another's  right." 

REMBEBT  v.  THE  STATE. 

Supreme  Court  of  Alabama,  i'875. 
53  Ala.  467. 

THE  appellant  was  tried  and  convicted  on  an  indictment  which 
charged  that  he,  "with  intent  to  defraud,"  forged  an  instrument 
in  writing,  in  words  and  figures,  as  follows:  "Due  8.25.  Askew 
Brothers,"  meaning  thereby  that  there  was  due  the  bearer  of  said 
instrument,  from  said  Askew  Brothers,  a  firm  composed  of 
Samuel  H.  Askew  and  Warren  S.  Askew,  the  sum  of  eight  dol- 
lars and  twenty-five  cents. 

The  defendant  demurred  to  the  indictment,  on  the  grounds, 
"1st,  that  the  instrument  in  writing,  alleged  to  be  forged,  is  in- 
valid on  its  face,  creates  no  liability,  has  no  legal  tendency  to 
effect  a  fraud,  and  cannot  be  the  subject  of  forgery;  2d,  that  the 
instrument  alleged  to  be  forged  creates  no  legal  liability  against 
any  person  whatever,  and  is  not  a  bill,  note,  check,  certificate,  or 
other  evidence  of  debt;  and  that  the  meaning  of  the  instrument 
cannot  be  ascertained  from  the  words  and  figures  thereof."  The 
court  overruled  the  demurrer,  and  its  ruling  is  now  relied  on  as 
error  fatal  to  the  conviction. 

BRICKELL,  C.  J.  There  are  numerous  definitions  of  the  of- 
fence of  forgery,  not  perhaps  substantially  differing.  "We  adopt, 
as  comprehensive  and  precise,  that  given  by  Mr.  Bishop:  'Tor- 


REMBERT  V.   THE  STATE.  447 

gery  is  the  false  making,  or  materially  altering,  with  intent  to 
defraud,  of  any  writing  which,  if  genuine,  might  apparently  be 
of  legal  efficacy,  or  the  foundation  of  a  legal  liability."  2  Bish. 
Grim.  Law,  sec.  495.  Mr.  Bishop  observes:  "The  principal  point 
for  consideration  is,  that  the  instrument  must  either  appear  on  its 
face  to  be,  or  be  in  fact,  one  which,  if  true,  would  possess  some 
legal  validity;  or,  in  other  words,  must  be  legally  capable  of  ef- 
fecting a  fraud."  Ib.  sec.  503.  If  the  writing  has  this  capacity, 
it  is  not  necessary  the  fraud  should  have  been  consummated ;  the 
offence  is  complete  without  the  concurrence  of  damage  or  injury. 
Jones  v.  State,  50  Ala.  161. 

If  the  writing  is  void  on  its  face,  illegal  in  its  very  frame,  it 
has  not  the  capacity  of  effecting  a  fraud,  and  is  not  the  subject 
of  forgery.  An  illustration  given  by  Mr.  East  is  Wall's  case,  who 
was  convicted  for  forging  and  altering  a  will  of  land,  purport- 
ing to  be  attested  by  only  two,  the  statute  of  wills  requiring  the 
attestation  of  three  witnesses.  The  judges  held  the  conviction 
wrong,  because  the  instrument  on  its  face  was  void,  incapable  of 
working  injury,  and  no  extrinsic  facts  could  impart  to  it  validity. 
2  East's  Crown  Law,  953.  So,  in  People  v.  Galloway,  17  Wend. 
540,  a  deed  of  lands  made  by  a  feme  covert,  conveying  her  own 
real  estate,  the  deed  on  its  face  disclosing  the  facts,  and  not  pur- 
porting to  be  acknowledged  in  the  mode  prescribed  by  the  statute 
to  give  it  validity,  was  declared  not  the  subject  of  forgery.  The 
forgery  of  a  certificate  of  a  private  individual,  that  a  slave  was  a 
freeman,  not  if  genuine  being  evidence  of  the  fact  certified,  im- 
posing no  duty,  and  conferring  no  right,  was  not  the  offence  de- 
nounced. It  was  not  the  fabrication  of  an  instrument  which 
could  affect  property.  State  v.  Smith,  8  Yerger,  150.  Such  an 
instrument  doubtless  might  have  been  the  ingredient  of  a  cheat, 
if  injury  had  ensued  from  it;  but  being  of  no  legal  efficacy,  either 
apparent  or  which  could  arise  from  extrinsic  facts,  it  was  not  suf- 
ficient to  constitute  the  offence  of  forgery.  The  false  making  a 
bill  of  exchange,  void  by  statute,  will  not  constitute  the  offence. 
State  v.  Jones,  1  Bay,  205 ;,  Moffatt's  Case,  2  East's  Crown  Law, 
954. 

This  general  rule,  that  if  the  instrument  is  void  on  its  face, 
it  is  not  the  subject  of  forgery,  must  be  taken  with  this  limita- 
tion: when  the  instrument  does  not  appear  to  have  any  legal 


448  SPECIFIC   CRIMES. 

validity,  or  show  that  another  might  be  injured  by  it,  but  ex- 
trinsic facts  exist  by  which  the  holder  of  the  paper  might  be 
enabled  to  defraud  another,  then  the  offence  is  complete,  and  an 
indictment  averring  the  extrinsic  facts,  disclosing  its  capacity  to 
deceive  and  defraud,  will  be  supported.  State  v.  Briggs,  34  Vt. 
503.  The  fact  that  the  paper  is  incomplete  or  imperfect  in  it- 
self, and  that  without  the  knowledge  of  extrinsic  facts  it  does  not 
appear  that  it  has  the  vicious  capacity,  only  renders  it  necessary 
that  the  indictment  should  aver  the  extrinsic  facts.  In  all  indict- 
ments for  forgery  at  common  law,  it  was  necessary  to  set  out 
the  instrument,  so  that  it  would  judicially  appear  to  the 
court  that  it  was  the  subject  of  forgery.  When  the  instrument 
is  complete,  perfect,  and  not  void  on  its  face;  and  when  it  is 
spoken  of  as  void,  is  intended  illegal  in  its  very  frame,  or  innoc- 
uous from  its  character,  as  in  the  case  of  the  will  not  properly 
attested,  or  the  void  bill  of  exchange,  or  the  certificate  worthless 
as  evidence,  or  the  deed  void  because  of  the  incapacity  of  the 
grantor,  its  criminal  character  was  disclosed  to  the  court.  When 
the  instrument  is  imperfect,  incomplete,  and  its  real  meaning  and 
terms  are  not  intelligible  from  its  words  and  figures,  but  are  to 
be  derived  from  extransic  facts,  and  its  capacity  to  injure  is  de- 
pendent on  such  facts,  then,  when  such  facts  are  averred,  and  the 
instrument,  its  meaning  and  purport;  made  intelligible  to  the 
court,  it  appears  judicially,  with  as  much  certainty  as  if  the  ex- 
trinsic facts  were  on  the  face  of  the  instrument,  and  that  set  out 
in  hcec  verba,  whether  it  has  the  vicious  capacity,  and  is  the  sub- 
ject of  forgery.  Carberry  v.  State,  11  Ohio  St.  411;  Common- 
wealth v.  Kay,  3  Gray,  448;  State  v.  Wheeler,  19  Minn.  98  (S. 
C.  1  Green's  Grim.  K.  541);  People  v.  Shall,  9  Cow.  778;  Peo- 
ple v.  Harrison,  8  Barb.  560;  Heed  v.  State,  28  Ind.  396;  Com- 
monwealth v.  Hinds,  101  Mass.  211;  People  v.  Stearns,  21 
Wend.  413.  In  this  last  case  the  principle  is  thus  stated:  "The 
indictment  must  show  the  forgery  of  an  instrument  which,  on 
being  described,  appears  on  its  face  naturally  calculated  to  work 
some  effect  on  property;  or,  if  it  be  not  complete  for  that  pur- 
pose, some  extrinsic  matter  must  be  shown,  whereby  the  court 
may  judicially  see  its  tendency.  As  an  instance  of  the  latter, 
suppose  a  man  has  the  custody  of  property,  which  he  agrees  to 
deliver,  on  the  owner  sending  him  certain  words  under  his  hand, 


REMBERT  V.   THE  STATE.  449 

which  have  no  respect  to  property,  but  which  are  a  secret  sign 
agreed  upon  between  them,  and  known  only  to  them.  Such 
words  would  be  the  subject  of  forgery  within  the  statute;  but 
not  being  significant,  and  it  not  being  conceivable  how  mischief 
would  ensue  from  their  use,  the  custody  of  the  goods  and  the 
agreement  on  the  words  must  be  shown  in  the  indictment.  But 
suppose  a  letter  by  which  the  writer  requests  another  to  deliver 
'my  purse  of  gold'  or  'my  package  of  bankb ills'  to  A.  B.,  are  not 
the  court  capable  of  seeing  at  once  how  the  forgery  of  such  an 
instrument  may  work  a  fraud;  and  hence  would  not  the  allega- 
tion that  the  letter  was  counterfeited,  with  the  usual  general 
averment  that  the  act  was  with  the  intent  to  defraud,  be  suf- 
ficient?" The  true  inquiry  is,  not  whether  the  instrument  on  its 
face  is  uncertain,  incomplete,  and  unintelligible,  but  is  it  void;  if 
genuine,  without  regard  to  extrinsic  facts,  would  it  be  invalid? 
The  uncertainty  and  incompleteness  may  be  removed  or  cured  by 
reference  to  extrinsic  facts;  and  when  these  are  averred  and 
proved,  the  offence  is  punishable  as  forgery. 

The  want  of  a  payee,  and  the  want  of  an  expression  in  words, 
or  in  figures  accompanied  by  the  dollar  mark,  of  the  sum 
acknowledged  to  be  due,  are  the  defects  which  it  is  insisted  ren- 
der the  instrument  forged  void.  No  statute  declares  such  an  in- 
strument void,  and  it  certainly  offends  no  principle  of  the 
common  law  for  the  maker  to  acknowledge  in  that  form  his  in- 
debtedness either  to  the  person  to  whom  the  acknowledgment 
is  delivered  or  to  some  other  person  who  may  be  expected  to  re- 
ceive it.  It  is  merely  uncertain  and  incomplete,  and  that  it  has 
the  vicious  capacity  to  defraud  depends  wholly  on  extrinsic  facts. 
If  these  are  averred,  and  disclose  this  capacity,  the  indictment  is 
sufficient;  and  proof  of  the  facts  will  authorize  conviction.  Sup- 
pose the  instrument  genuine,  and  the  defendant  suing  the 
makers,  Askew  Brothers,  on  it,  averring  in  his  complaint  the 
facts  averred  in  the  indictment,  can  it  be  doubted  the  complaint 
would  be  sufficient,  and  proof  of  the  facts  entitle  him  to  a 
recovery? 

Under  our  statute,  the  instrument  would  import  a  considera- 
tion, and  its  execution  could  only  be  denied  by  a  sworn  plea ;  nor 
could  the  ownership  of  the  plaintiff,  averred  in  the  complaint,  be 
put  in  issue  otherwise  than  by  a  sworn  plea.  The  court  would  by 
29 


450  SPECIFIC  CRIMES. 

intendment  supply  the  dollar  mark,  omitted  in  expressing  the 
sum  acknowledged  to  be  due,  rather  than  treat  the  instrument  as 
void  for  uncertainty.  Murrill  v.  Handy,  17  Mo.  406;  Northrop 
v.  Sanborn,  22  Vt.  433;  Evans  v.  Steel,  2  Ala.  114;  White  v. 
Word,  22  Ala.  442;  Butler  v.  State,  22  Ala.  43.  Courts  are  very 
reluctant  to  pronounce  written  instruments  void  for  mere  un- 
certainty. When  words  are  omitted,  which  from  the  very  nature 
of  the  instrument  can  be  supplied  with  certainty,  the  legal  con- 
struction and  operation  of  the  instrument  is  the  same  as  if  they 
had  been  expressed.  No  one  can  doubt,  if  Askew  Brothers  had 
made  and  delivered  to  the  defendant  a  genuine  instrument,  in 
the  words  and  figures  of  the  false  instrument,  that  the  courts, 
ut  res  magis  valeat  quam  pereat,  would  have  supplied  by  intend- 
ment the  defects  which  it  is  insisted  now  render  the  instrument 
void. 

If  on  its  face  the  instrument  is  so  uncertain  that  it  does  not 
appear  to  be  the  subject  of  forgery,  capable  of  working  injury, 
the  averments  of  the  indictment  cure  the  defect,  and  place  the  in- 
strument just  where  it  would  stand  if  these  facts  were  expressed 
on  its  face.  It  would  then  be  an  instrument  creating  a  pecuniary 
demand,  and  its  false  making  forgery  in  the  second  degree,  under 
the  statute.  R.  C.  sec.  3702. 

There  was  no  error  in  overruling  the  demurrer  to  the  indict- 
ment, and  the  judgment  must  be  affirmed. 

People  v.  Warner,  62  N.  W.  405;  Com.  v.  Baldwin,  11  Gray  197;  State 
v.  Stratton,  27  la.  420;  People  v.  Graham,  6  Park  Or.  Rep.  135;  Jones  v. 
State,  50  Ala.  161;  State  v.  Young,  46  N.  H.  266;  Barnum  v.  State,  15 
Ohio  717;  Clark,  p.  292;  Bish.  I.,  Sec.  572;  Wharton,  Sec.  653;  Hawley  & 
McGregor,  p.  225. 

NOTE. — Statutes  generally  to-day  prescribe  what  instruments  are  sub- 
ject to  forgery,  and  make  degrees  of  the  crime  according  to  the  nature 
of  the  instrument  forged. 

Minn.  Stat.  1894,  Sees.  6690-6707;  N.  Y.  Penal  Code,  Sees.  509-526. 


STATE  V.    BUET.  451 

d. 

Larceny. 

Larceny  is  "The  felonious  taking  and  carrying  away  of 
the  personal  goods  of  another." 

(1)  Elements. 
(a)  Personal  Property. 
Personal  property  alone  is  subject  to  larceny. 

STATE  v.  BURT. 

Supreme  Court  of  North  Carolina,  1870. 
64  N.  C.  619. 

THERE  was  a  special  verdict,  finding:  that  there  was  a  verbal 
contract  between  Burt  and  the  owner  of  a  gold  mine,  that  the 
former  might  run  a  rocker  in  such  mine,  paying  a  certain  rent; 
that  the  other  defendants  were  working  with  Burt;  that  one  of 
of  these  employees  found  a  nugget  of  gold  lying  upon  the  land 
of  the  owner  of  the  mine,  on  the  top  of  a  rock  pile,  not  a  part 
of  the  proceeds  of  the  rocker;  and  that,  after  consultation  with 
the  other  defendants,  it  was  appropriated  to  their  own  use,  and 
was  never  accounted  for  to  the  owner. 

His  Honor  thereupon  gave  judgment  for  the  defendants,  and 
the  solicitor  for  the  State  appealed. 

DICK,  J.  Nuggets  of  gold  are  lumps  of  native  metal,  and  are 
often  found  separated  from  the  original  veins.  When  this  separ- 
ation is  produced  by  natural  causes,  there  is  no  severance  from 
the  realty,  but  such  nuggets  will  pass  under  a  conveyance,  like 
ores  and  minerals  which  are  embedded  in  the  earth.  When  ores 
and  minerals  are  taken  out  of  mines  with  expense,  skill  and  labor, 
to  be  converted  into  metals,  or  used  for  the  purposes  of  trade  and 


452  SPECIFIC  CRIMES. 

commerce,  they  become  personal  property,  and  are  under  the  pro- 
tection of  the  criminal  law. 

In  England,  ores,  even  before  they  are  taken  from  the  mines, 
are  protected  by  highly  penal  statutes:  St.  7  and  8  George  IV., 
amended  by  24  and  25,  Viet.  Loose  nuggets  which  are  occasion- 
ally found  in  gullies  and  branches,  and  in  woods  and  fields,  are 
hardly  considered  by  the  law  as  the  subjects  of  determinate  prop- 
erty, until  they  are  discovered  and  appropriated,  and  then  they 
become  personal  goods,  and  are  the  subjects  of  larceny.  In  this 
respect  they  somewhat  resemble  treasure  trove,  waifs,  etc.,  in  the 
criminal  law  of  England. 

It  is  an  ancient  rule  of  the  common  law,  that  things  which 
savor  of,  or  adhere  to  realty,  are  not  the  subject  of  larceny.  In 
this  respect  the  common  law  was  very  defective,  and  did  not  af- 
ford sufficient  protection  to  many  valuable  articles  of  personal 
property  which  were  constructively  annexed  to  the  realty.  These 
defects  have,  in  some  degree,  been  remedied  by  a  number  of  stat- 
utes in  this  country  and  in  England. 

These  beneficial  changes  were  induced  by  the  necessities  of 
progressive  civilization,  which  required  many  valuable  species  of 
personal  property  to  be  annexed  to  realty,  to  be  used  for  the  pur- 
poses of  trade  and  manufacture,  and  in  the  arts;  and  which 
needed  the  constant  protection  of  the  criminal  law. 

In  a  case  like  ours,  there  is  no  necessity  for  the  court  to  de- 
part from  the  ancient  technical  strictness  of  the  common  law, 
and  there  is  no  need  of  any  additional  legislation  upon  such  a 
subject.  In  public  estimation  it  has  never  been  regarded  as  lar- 
ceny for  the  fortunate  finder  of  a  nugget  of  gold,  or  a  precious 
stone,  to  appropriate  it  to  his  own  use,  although  found  upon  the 
land  of  another  person.  Hundreds  of  instances  of  this  kind  have 
doubtless  occurred,  and  yet  no  case  can  be  found  of  a  prosecu- 
tion for  larceny  on  this  account,  either  in  the  courts  of  this  coun- 
try or  of  England.  This  fact  sustains  us  in  the  opinion,  that  for 
cases  like  the  one  before  us,  there  is  no  necessity  to  depart  from 
the  ancient  landmarks  established  by  the  fathers  of  our  criminal 
jurisprudence.  The  nugget  was  found  upon  a  loose  pile  of  rocks 
by  one  of  the  defendants,  and  the  taking  and  carrying  away  was 
one  continued  act,  and  did  not  amount  to  larceny,  but  was  only  a 
civil  trespass:  1  Hale  P.  C.  510;  2  East.  P.  C.  587;  Koscoe 
Grim.  Ev.  459;  2  Russell  on  Cr.  136;  2  Bish.  Or.  Law,  s.  779. 


HARRISON   V.   THE   PEOPLE.  453 

There  was  no  error  in  the  ruling  of  his  Honor,  and  the  judg- 
ment must  be  affirmed. 
Per  Curiam. 
Judgment  affirmed. 

State  v.  Fitzpatrick,  9  Houst.  385,  32  Atl.  Rep.  1072;  State  v.  House, 
65  N.  C.  315;  State  v.  Taylor,  27  N.  J.  L.  117;  Com.  v.  Beaman,  8  Gray 
497;  Com.  v.  Chace,  9  Pick.  15;  Smith  v.  Com.,  14  Bush  (Ky.)  31;  Hut- 
chison v.  Com.,  82  Pa.  St.  472;  Ward  v.  People,  6  Hill  (N.  Y.)  144;  People 
v.  Williamson,  35  Cal.  671;  Com.  v.  Steimling,  156  Pa.  St.  400,  27  Atl. 
299;  State  v.  Musgang,  51  Minn.  556;  Ransom  v.  State,  22  Conn.  152; 
Minn.  Stat.  1894,  Sec.  6709;  State  v.  George,  60  Minn.  503;  Clark,  p.  243; 
Wharton,  Sec.  862;  Bishop  II.,  Sec.  761  et  seq.;  Hawley  &  McGregor, 
p.  198. 

NOTE.— At  common  law,  dogs,  cats,  ferrets,  etc.,  not  being  property, 
could  not  be  stolen,  but  in  many  jurisdictions  statutes  make  anything 
of  value  property. 

Mullaly  v.  People,  86  N.  Y.  365;  People  v.  Campbell,  4  Parker  Cr.  Rep. 
386;  Hay  wood  v.  State,  41  Ark.  476;  Hurley  v.  State,  33  Tex.  App.  333; 
N.  Y.  Penal  Code,  Sec.  718;  Minn.  Stat.  1894,  Sec.  6709;  Clark,  p.  244; 
Wharton,  Sec.  872;  Hawley  &  McGregor,  p.  199. 

NOTE.— The  ownership  must  be  in  another  than  the  thief,  but  one 
may  steal  from  one  enjoying  only  a  special  property  interest. 

State  v.  Allen,  103  N.  C.  433,  9  S.  E.  626;  State  v.  McRae,  111  N.  C. 
665,  16  S.  E.  173;  Com.  v.  Greene,  111  Mass.  392;  Clark,  p.  246;  Bishop. 
II.,  Sec.  788  et  seq;  Wharton,  Sec.  936;  Hawley  &  McGregor,  p.  200. 


(b)  The  Act. 

There  must  be  a  trespass  in  the  taking,  and  the  taking 
must  be  from  the  possession  of  another,  but  it  need  not  be 
secretly  done,  nor  with  force  or  intimidation,  for  then  it 
would  be  a  robbery. 

HARBISON  v.  THE  PEOPLE. 

Court  of  Appeals  of  New  York,  1872. 
50  N.  Y.  518. 

FOLGER,  J.  The  plaintiff  in  error  was  indicted  for  simple  lar- 
ceny. The  jury,  having  found  him  guilty,  have  fixed  upon  him 


454  SPECIFIC   CRIMES. 

the  felonious  intent.  The  questions  raised  in  this  court,  are  pre- 
sented by  an  exception  to  a  refusal  of  the  court,  to  charge  the 
jury  that  they  could  not  convict  of  any  other  offence  upon  the 
testimony,  than  an  attempt  to  commit  larceny;  and  an  excep- 
tion to  the  charge  delivered  to  the  jury,  that  the  removal  of  the 
property  from  where  it  was  deposited  was  sufficient  carry- 
ing away  to  constitute  larceny  if  it  was  of  a  felonious  character. 

Had  the  coat  of  the  witness,  Bull,  with  the  pocketbook  in  it, 
been  off  his  back,  hanging  on  a  hook,  the  act  of  the  plaintiff  in 
error  with  felonious  intent  would,  beyond  question,  have  been 
larceny.  Thus,  in  one  case  the  prisoner,  sitting  on  a  coach-box, 
took  hold  of  the  upper  part  of  a  bag  which  was  in  the  front  boot, 
and  lifted  it  up  from  the  bottom  of  the  boot  on  which  it  rested. 
He  handed  the  upper  part  of  the  bag  to  a  person  who  stood  be- 
side the  wheel,  and,  both  holding  it,  endeavored  to  pull  it  out, 
but  were  prevented  by  the  guard.  The  prisoner  being  found 
guilty,  the  judges,  on  a  case  reserved,  were  of  opinion  that  the 
conviction  was  right,  thinking  that  there  was  a  complete  a$porta- 
mt  of  the  bag.  (Walsh's  Case,  1  Moody  Crown  Cases,  14.)  And 
in  2  Russell  on  Crimes,  153  (margin  6,  4th  ed.,  Lon.),  this  case 
purports  to  be  cited  from  the  MS.  of  Bayley,  J. ;  and  in  the  foot 
note  (i)  the  text  is  said  to  correspond  accurately  with  that  of  the 
MS. ;  and  it  is  there  said ;  "That  if  every  part  of  the  thing  is  re- 
moved from  the  space  which  that  part  occupied,  though  the  whole 
thing  is  not  removed  from  the  whole  space  which  the  whole  thing 
occupied,  the  asportation  will  be  sufficient;  so,  drawing  a  sword 
partly  out  of  its  scabbard  will  constitute  a  complete  asportavit" 

Here,  by  the  testimony,  the  pocketbook  was  lifted  a  space  of 
three  inches  from  the  bottom  of  the  pocket,  and  every  part  of 
it  was  removed  from  the  space  which  that  part  occupied  before 
the  plaintiff  in  error  touched  it. 

But  it  is  claimed  that  the  article  being  on  the  person  of  Bull, 
and  in  his  actual  possession,  there  is  thereby  a  difference;  and 
that  there  must  be  a  severance  of  the  goods  from  that  possession. 
And  Rex  v.  Thompson  (1  Moody  Crown  Cases,  78),  is  cited.  The 
prisoner  was  there  indicted  for  stealing  from  the  person  a  pocket- 
book  and  contents.  The  book  was  in  an  inside  front  pocket  of 
'the  owner's  coat.  The  book  was  just  lifted  out  of  the  pocket, 
an  inch  above  the  top  of  the  pocket.  By  the  forcible  act  of  the 


HARRISON   V.    THE   PEOPLE.  455 

owner  the  hand  of  the  prisoner  was  brushed  away,  and  the  book 
fell  back  into  the  pocket.  The  prisoner  was  convicted  and  had 
the  sentence  for  that  offence.  It  was  insisted  that  this  did  not 
amount  to  a  taking  from  the  person.  Six  of  the  ten  judges  who 
sat  in  review  held  that  the  prisoner  was  not  rightly  convicted  of 
stealing  from  the  person,  because,  from  first  to  last,  the  book  re- 
mained about  the  person  of  the  prosecutor.  Four  of  the  judges 
were  of  the  contrary  opinion.  But  the  ten  were  of  one  mind 
that  the  simple  larceny  was  complete,  and  recommended  a  reduc- 
tion of  the  sentence.  A  distinction,  it  seems,  was  taken  between 
stealing  from  the  person  and  a  simple  larceny;  and  all  that  the 
case  holds  to  the  benefit  of  this  plaintiff  in  error  is  that  such  an 
act  is  not  a  stealing  from  the  person.  As  above  stated,  he  is  not 
indicted  for  stealing  from  the  person,  but  for  feloniously  steal- 
ing, taking  and  carrying  away  this  property  against  the  form  of 
statute  in  such  case  made  and  provided.  (2  R.  S.,  p.  679,  sec. 
63.)  And  the  judgment  of  the  court,  sentencing  him  to  State  pri- 
son for  a  term  of  five  years,  is  in  accord  with  the  statute  as  to  the 
punishment  for  the  offence  for  which  he  was  indicted. 

Moreover,  in  Regina  v.  Simpson  (Dearsly  Crown  Cases,  421), 
which  was  a  case  of  stealing  from  the  person,  Jervis,  C.  J.,  ques- 
tioned the  case  of  Rex  v.  Thompson  (supra),  saying  that  he 
thought  that  the  minority  of  the  judges  there  were  right;  but 
that  the  majority  might  have  thought  that  the  outer  coat  which 
covered  the  pocket  formed  a  protection  to  the  pocketbook.  And 
Alderson,  B.,  said  there  must  be  a  removal  of  the  property  from 
the  person;  but  a  hair's  breadth  will  do.  Regina  v.  Simpson 
(supra)  was  larceny  of  a  watch.  The  owner  carried  it  in  his 
waistcoat  pocket,  with  one  end  of  a  chain  attached  to  it,  and  the 
other  end  through  a  button-hole  of  the  waistcoat,  and  there  kept 
by  a  watch-key.  The  prisoner  took  the  watch  out  of  the  pocket 
and  forcibly  drew  the  chain  through  the  button-hole.  His  hand 
was  then  seized  by  the  owner's  wife;  and  it  appeared  that  the 
point  of  the  key  had  caught  on  the  button  of  another  hole,  and 
was  thereby  suspended.  It  was  contended  that  the  prisoner  was 
guilty  of  an  attempt  only.  But  the  court  thought  that,  as  the 
chain  had  been  removed  from  the  button-hole,  the  felony  was 
complete.  The  watch  was  temporarily,  though  for  a  moment,  in 
his  possession,  it  was  said.  Like  this  was  Lapier's  Case  (1  Leach 


456  SPECIFIC   CRIMES. 

Crown  Cases,  320),  who,  snatching  at  a  diamond  earring  in  a 
lady's  ear,  it  was  torn  therefrom,  but  was  found  caught  in  the 
curls  of  her  hair.  He  was  found  guilty  of  robbery  from  the  per- 
son, for  the  earring  was  in  his  possession  for  a  moment,  separate 
from  the  lady's  person.  And  in  Commonwealth  v.  Luckis  (99 
Mass.,-  431),  which  was  an  indictment  for  an  attempt  to  steal 
from  the  person,  the  prisoner  asked  an  acquittal  on  the  ground 
that  the  larceny  was  complete,  and  so  she  could  not  be  convicted 
of  an  attempt  only.  She  was  seen  by  a  police  officer  with  her 
hand  in  the  pocket  of  another.  He  seized  her  wrist  while  her 
hand  was  there.  She  threw  up  her  arm  and  tore  the  dress,  so 
that  the  pocket  and  pocketbook  fell  to  the  ground.  There  was  no 
evidence  that  her  hand  was  on  the  book.  The  judge  charged  that 
if  she  was  arrested  in  her  attempt  before  her  hand  reached  or  dis- 
turbed the  book,  she  might  be  convicted  of  an  attempt;  but  if 
her  hand  had  reached  or  seized  the  pocketbook,  and  she  altered 
the  position  of  it  in  the  attempt  to  secure  or  retain  it,  this  would 
be  such  a  caption  or  asportation  as  would  acquit  the  defendant; 
and  she  was  convicted.  On  exceptions  taken  to  the  charge,  the 
court  above  held:  That  to  justify  a  conviction,  it  was  neces- 
sary to  show  that  she  failed  in  the  perpetration  of  the  offence  of 
stealing  from  the  person,  which  could  be  complete  only  when  the 
property  was  in  her  full  custody  or  control.  It  was  not  indeed, 
the  court  said,  necessary  that  the  pocketbook  should  be  removed 
from  the  pocket,  if  once  within  the  grasp  of  the  thief,  to  consti- 
tute larceny.  But  the  prisoner  must,  for  an  instant,  have  had 
perfect  control  of  the  property. 

To  constitute  the  offence  of  larceny,  there  must  be  a  taking 
or  severance  of  the  goods  from  the  possession  of  the  owner.  (2 
Russ.  on  Crimes,  p.  152,  margin  6.)  But  possession,  so  far  as 
this  offence  is  concerned,  is  the  having  or  holding  or  detention 
of  property  in  one's  power  or  command.  It  is  the  sole  control  of 
the  property,  or  of  some  physical  attachment  to  it ;  as  in  the  case 
of  Wilkinson  (1  Leach,  321,  note  a),  where  one  had  his  keys  tied 
to  the  strings  of  his  purse  in  his  pocket,  which  the  prisoner  at- 
tempted to  take,  and  had  the  purse  in  his  hand,  but  the  strings 
of  the  purse  still  held  to  the  pocket  by  means  of  the  keys.  This 
was  held  to  be  no  asportation;  for  the  purse  could  not  be  said  to 
be  carried  away,  as  it  still  remained  fastened  to  the  place  where 


HARBISON  V.   THE   PEOPLE.  457 

it  was  before.  And  so,  where  goods  in  a  shop  were  tied  by  a 
string  to  a  counter,  a  thief  took  up  the  goods  and  carried  them  to 
the  door,  as  far  as  the  string  would  let  him,  and  was  there 
stopped.  This  was  held  no  felony.  (2  East  Crown  Law,  5  5  6.)  Here 
was  an  actual,  physical  connection  of  the  goods  to  the  person  or 
to  the  other  property  of  the  owner;  and  the  complete 
carrying  away  was  thwarted,  not  by  the  animate,  forcible  act  of 
the  owner  taking  back  that  which  had  for  the  instant  passed 
from  his  control,  but  by  the  inanimate,  self-acting  detention  of 
that  which  held  it  to  the  person  or  to  the  realty.  That  needed 
first  to  be  severed  before  there  could  be  a  carrying  away.  (And 
see  Philips'  Case,  4  City  Hall  Kecorder,  177.) 

In  Rex  v.  Thompson  (supra),  however,  and  in  Luckis'  Case 
(supra),  as  put  in  the  charge  and  in  the  opinion,  by  the  raising 
of  the  book  out  of  the  pocket  of  the  owner,  or  by  the  grasp  and 
movement  of  it  in  the  pocket,  the  owner  was  held  to  have  lost 
that  control  of  it  which  is  possession,  so  that  the  felonious  act  of 
larceny  was  complete.  There  was  no  fastening  there  to  be 
severed.  It  needed  forcible  action  by  him  to  retake  it.  Mere 
quiescence  would  not  do  it.  Without  that  action,  with  the  book 
in  the  grasp  of  the  thief  possessing  it,  controlling  it  and  carrying 
it  away,  it  would  have  been  beyond  recaption  by  him.  So  in  the 
case  here.  The  hand  of  the  plaintiff  in  error  was  about  the  book, 
controlling  it  and  taking  it  away;  indeed,  had  taken  it  away  (as. 
in  Walsh's  Case,  supra),  every  part  of  it,  from  the  space  which 
that  part  had  occupied  before  his  touch.  It  was  in  his  possession. 
He  directed,  and,  for  the  instant  of  time,  controlled  its  move- 
ments. No  inanimate,  physical  thing  hindered  him.  Bull,  for 
that  instant  of  time,  did  not  control  or  possess  it;  but,  feeling  him 
raising  the  book,  threw  up  his  own  hand,  pressed  the  book,  caught 
it  as  it  was  going,  and  regained  control  and  possession  of  it.  But 
for  this  action  it  would  have  been  taken  entirely  away.  Who 
then,  for  that  instant,  controlled  it  and  had  it  in  possession? 

There  is  no  essential  distinction  in  the  cases.  In  Rex  v. 
Thompson  (supra)  and  in  this  case,  as  in  the  cases  of  the  watch 
and  of  the  earring,  there  was  a  temporary  possession  by  the  larce- 
nor,  though  but  momentary. 

There  was  a  sufficient  asportavit. 


468  SPECIFIC  CRIMES. 

The  judgment  of  courts  below  should  be  affirmed. 
All  concur. 
Judgment  affirmed. 

MOLTON  v.  THE  STATE. 

Supreme  Court  of  Alabama,   1895. 
105  Ala.  18;  16  So.  795. 

DAVE  MOLTON  was  convicted  of  larceny,  and  appeals.  Re- 
versed. 

The  State  introduced  one  William  Taylor  as  a  witness,  who 
testified  that  on  February  6,  1894  (the  trial  being  at  the  Octo- 
ber Term,  1894),  he  missed  a  hog  belonging  to  him,  and  that,  on 
going  to  look  for  it,  he  came  to  a  thicket,  whence  the  defendant 
came;  that  defendant  picked  up  a  gun  lying  near  by,  and,  after 
advancing  toward  the  witness,  spoke  to  him,  and  then  walked 
away;  that  he  (the  witness)  went  into  the  thicket,  and  found  his 
hog  lying  therein,  dead,  with  blood  running  from  what  ap- 
peared to  be  a  freshly -made  gunshot  wound ;  that  he  could  not  be 
mistaken  as  to  the  defendant's  identity;  that  he  knew  the  de- 
fendant well,  and  had  lived  as  his  neighbor  for  several  years. 
The  witness  further  testified  that  he  did. not  see  the  defendant 
at  the  hog  at  all,  but  that  the  defendant  came  from  the  direction 
where  he  found  the  hog  lying  in  the  thicket.  The  testimony  for 
the  defendant  tended  to  prove  an  alibi,  being  to  the  effect  that 
on  the  6th  day  of  February,  at  the  time  specified  by  the  witness, 
Taylor,  he  was  in  the  city  of  Montgomery,  and  was  not  at  the 
place  where  the  said  Taylor  found  his  hog,  a  distance  of  seven 
miles  from  Montgomery.  The  defendant  denied  all  knowledge 
as  to  the  killing  of  the  hog,  and,  as  a  witness  in  his  own  behalf, 
testified  that  he  did  not  kill  the  hog. 

BRICKELL,  C.  J.  The  indictment  is  founded  on  the  statute 
(Cr.  Code,  sec.  3789)  which  declares  the  larceny  of  a  hog  and 
of  other  domestic  animals  therein  enumerated  a  felony,  without 


MOLTON  V.   THE   STATE.  459 

regard  to  the  value  of  the  animal.  On  the  trial  the  court  in- 
structed the  jury  in  these  words:  "If  a  man  shoots  the  hog  of 
another  with  the  intent  to  steal  it,  and  kills  the  hog,  and  takes 
possession  of  it,  he  is  guilty  of  larceny;  or  if  he  gets  near  enough 
to  the  hog  to  exercise  dominion  and  control  over  it,  after  the 
killing,  with  the  intent  to  steal  it,  he  is  guilty  of  larceny 
thereof."  An  exception  was  reserved  to  the  instruction  as  a 
whole,  and  a  separate  exception  to  the  last  clause  or  member, 
•commencing  with  the  word  "or."  As  a  whole,  the  instruction 
is  not  erroneous.  The  first  clause  or  member  hypothesizes  every 
fact  essential  to  constitute  larceny.  The  intent  to  steal,  and  the 
consummation  of  the  intent  by  the  taking  possession,  which  of 
itself  includes  an  asportation,  are  the  essential  elements  of  the 
offence  of  larceny,  however  it  may  be  defined  or  described.  The 
last  clause  or  member,  however,  seems  to  us  erroneous.  To  con- 
stitute larceny,  there  must  be  a  severance  of  the  possession  of 
the  owner  and  an  actual  possession  by  the  wrongdoer.  The 
severance  of  the  possession  of  the  owner  and  the  actual  posses- 
sion of  the  wrongdoer  may  be  but  for  a  moment;  the  length  of 
time  they  continue  is  not  important;  but,  as  appreciable  facts, 
they  must  exist.  Rose.  Or.  Ev.  (7th  Ed.)  622;  Frazier  v.  State, 
85  Ala.  17,  4  South.  691;  Thompson  v.  State,  94  Ala.  535,  10 
South.  520;  Wolf  v.  State,  41  Ala.  412;  State  v.  Seagler,  1 
Rich.  Law,  30;  State  v.  Alexander,  74  K  C.  232.  That  the 
wrongdoer  may  be  in  such  position  or  condition  as  enables  him 
to  exercise  the  power  of  taking  and  carrying  away  the  thing 
alleged  to  be  stolen  is  not  sufficient.  Until  he  avails  himself  of 
the  position  or  condition,  and  exercises  the  power  by  the  taking 
of  possession,  which,  as  we  have  said,  involves  an  asportation, 
the  offence  is  not  complete,  however  evil  may  have  been  his 
intent.  In  State  v.  Seagler,  supra  (an  indictment  for  the  lar- 
ceny of  a  hog),  the  facts  were  in  all  material  respects  similar  to 
the  facts  of  the  present  case,  and  it  was  held  the  offence  was  not 
complete  unless  the  accused,  after  killing  the  hog,  had  taken 
possession  of  it.  The  court  said,  though  the  intent  to  steal  was 
manifest,  to  constitute  the  offence  there  must  be  a  carrying 
away,  a  removal  of  the  goods  from  where  they  were,  "and  the 
felon  must,  at  least  for  an  instant,  be  in  the  entire  possession  of 
the  goods."  In  State  v.  Alexander,  supra,  the  court  said:  "To 


460  SPECIFIC   CRIMES. 

complete  the  crime  of  larceny,  it  is  not  sufficient  that  the  de- 
fendant had  the  control  of  the  article, — that  is,  had  the  power 
to  remove  it, — but  there  must  be  an  asportation  of  the  thing 
alleged  to  have  been  stolen.  It  is  true  a  very  slight  asportation 
will  be  deemed  sufficient;  yet  there  must  be  some  removal  to 
complete  the  offence.  The  case  here  shows  that  there  was  no 
removal  of  the  hog,  but  that  it  remained  in  situ,  as  it  had  been 
shot  down."  In'Frazier  v.  State,  supra,  said  Clopton,  J. :  "It 
is  said  generally  that,  to  constitute  the  offence,  there  must  be  a 
wrongful  taking  possession  of  the  goods  of  another,  with  the  in- 
tent to  deprive  the  owner  of  his  property,  either  permanently 
or  temporarily.  The  accused  must  have  acquired  dominion,  so 
as  to  enable  him  to  take  actual  custody  or  control,  followed  by 
asportation,  which  severs  the  property  from  the  possession  of 
the  owner  to  some  appreciable  extent."  In  Thompson  v.  State, 
supra,  said  Walker,  J. :  "To  constitute  larceny,  there  must  be 
a  felonious  taking  and  carrying  away  of  personal  property. 
There  must  be  such  a  caption  that  the  accused  acquires  domin- 
ion over  the  property,  followed  by  such  an  asportation  or  carry- 
ing away  as  to  supersede  the  possession  of  the  owner  for  an  ap- 
preciable period  of  time.  Though  the  owner's  possession  is  dis- 
turbed, yet  the  offence  is  not  complete  if  the  accused  fails  to 
acquire  such  dominion  over  the  property  as  to  enable  him  to 
take  actual  custody  or  control."  The  accused  may,  with  the  in- 
tent to  steal,  have  killed  the  hog,  and  may  have  been  near 
enough  to  take  possession  and  carry  it  away;  yet  the  offence  of 
larceny  was  not  complete  until  the  possession  of  the  owner  was 
severed  by  the  taking  of  actual  possession  by  the  accused.  If 
the  expressions  in  the  opinions  in  the  cases  of  Edmonds  v.  State, 
70  Ala.  8,  and  Croom  v.  State,  71  Ala.  14,  to  which  we  are 
referred,  assert  a  contrary  doctrine,  we  cannot  adhere  to  them. 
The  last  clause  of  the  instruction  is  erroneous,  and  the  judg- 
ment must  be  reversed,  and  the  cause  remanded. 

Bonsall  v.  State,  35  Ind.  460;  State  v.  Fenn,  41  Conn.  590;  Beasley  ». 
State,  38  N.  E.  35;  Hooper  v.  State,  25  S.  W.  966;  State  v.  Hill,  18  S.  E. 
971;  People  v.  Taugher,  61  N.  W.  66;  Eckels  v.  State,  20  Ohio  St.  508; 
Edmonds  v.  State,  70  Ala.  8;  Com  v.  Ryan,  30  N.  E.  364;  Clark,  p.  248  r 
Bishop  I.,  Sees.  207  (2),  342  (2),  566;  Wharton,  Sec.  914;  Hawley  &  Mc- 
Gregor, p.  192. 


STATE  V.   GREEN.  461 

NOTE. — At  common  law,  unless  one  obtained  possession  of  property 
by  subterfuge,  he  did  not  commit  larceny  of  it.  So  a  bailee  cannot 
commit  larceny  of  property  in  his  possession  until,  by  breach  of  his 
trust,  he  has  terminated  the  relation  of  bailor  and  bailee. 

People  v.  Rae,  66  Gal.  423;  State  v.  Anderson,  25  Minn.  66;  State  v. 
Fann,  65  N.  O.  317;  State  v.  Chew  Muck  You,  20  Ore.  215;  People  v. 
Taugher,  61  N.  W.  66;  People  v.  Tomlinson,  102  Cal.  19;  Clark,  p.  250; 
Wharton,  Sec.  963. 

NOTE.— By  some  statutes  larceny  includes  embezzlement,  and  in  those 
jurisdictions  the  above  distinction  is  unnecessary. 

Minn.  Stat.  1894,  Sees.  6709,  6710,  6711;  N.  Y.  Penal  Code,  Sec.  528; 
Clark,  p.  250. 


(c)  Carrying  Away. 

The  taking  is  not  complete  unless  a  removal  accom- 
panies it. 

STATE  v.  GBEEN. 

Supreme  Court  of  North  Carolina,  1879. 
81  N.  C.  560. 

INDICTMENT  for  larceny,  tried  at  Spring  Term,  1879,  of  Pitt 
Superior  Court,  before  Seymour,  J. 

The  evidence  was  that  the  defendant  who  was  in  the  employ 
of  the  prosecuting  witness  took  the  key  of  the  witness'  safe  from 
his  pocket  one  morning  before  the  witness  had  dressed,  and  went 
to  his  office,  unlocked  the  safe,  took  therefrom  a  drawer  contain- 
ing money,  completely  removing  the  same  from  the  safe,  and  was 
handling  the  money  when  the  witness  detected  him;  but  the 
money  was  not  removed  from  the  drawer.  Thereupon  the  de- 
fendant's counsel  requested  the  court  to  charge  the  jury  that 
there  was  no  evidence  of  an  asportavit.  The  court  declined,  but 
instructed  the  jury  that  if  the  defendant  removed  the  drawer 
from  the  safe  with  the  felonious  intent  to  steal  the  money  in 
such  drawer,  he  was  guilty.  Defendant  excepted.  Verdict  of 
guilty,  judgment,  appeal  by  defendant. 

SMITH,  C.  J.  The  defendant  has  been  twice  convicted  under 
an  indictment  containing  two  counts,  one  for  the  larceny  of  one 
dollar  in  money,  and  the  other  for  feloniously  receiving  the  like 


462  SPECIFIC   CRIMES. 

sum,  once  in  the  inferior,  and  again  on  his  appeal  in  the  Superior 
Court  of  Pitt  county.  The  judgment  in  each  court  was  the  same, 
that  the  defendant  be  confined  in  the  State  prison  for  three 
years. 

The  only  exception  taken  and  presented  in  the  appeal  is  to  the 
refusal  of  the  court  to  charge  that  the  evidence  failed  to  prove 
such  asportation  of  the  money  as  is  necessary  to  constitute  lar- 
ceny. 

We  think  the  judge  was  correct  in  declining  to  give  the  in- 
struction. "A  bare  removal  from  the  place  in  which  the  thief 
found  the  goods,  though  he  does  not  make  off  with  them,"  says 
Mr.  Justice  Blackstone,  defining  an  element  in  larceny,  "is  a 
sufficient  asportation  or  carrying  away."  4  Blackstone  Com., 
231. 

Accordingly  it  has  been  held  that  where  one  broke  open  a 
chest  in  the  dwelling-house  of  another,  nobody  being  there,  and 
took  out  the  goods  and  laid  them  on  the  floor  of  the  same  room, 
and  is  then  apprehended,  or  where  one  drew  out  a  book  from  the 
inside  of  the  prosecutor's  pocket,  an  inch  above  its  top,  and  then, 
on  a  movement  of  the  prosecutor's  hands,  let  the  book  drop  and 
it  fell  back  into  the  pocket,  or  where  an  earring  was  separated 
from  the  ear  of  a  lady  in  which  it  was  worn,  and  it  fell  and 
lodged  in  the  curls  of  her  hair, — in  all  these  cases  the  asporta- 
tion was  sufficient.  1  Hale,  508.  And  so  have  been  the  adjudica- 
tions in  this  State. 

"It  is  a  sufficient  carrying  away  to  constitute  the  offence  of 
larceny,"  says  Settle,  J.,  "if  the  goods  are  removed  from  the  place 
where  they  were,  and  the  felon  has  for  an  instant  the  entire  and 
absolute  possession  of  them."  State  v.  Jackson,  65  N.  C.,  305. 
The  least  removal  of  an  article  from  the  actual  or  constructive 
possession  of  the  owner,  so  as  to  be  under  the  control  of  the 
felon,"  says  Dick,  J.,  "will  be  a  sufficient  asportation."  State  v. 
Jones,  Ibid.,  395. 

The  case  before  us  clearly  comes  within  the  principle  of  these 
adjudications.  The  defendant  had  removed  the  drawer  from  the 
safe  and  was  handling  the  money  found  in  it  at  the  time  of  his 
detection,  and  the  act  of  stealing  was  complete. 

Per  Curiam. 

No  error. 


EDMONDS   V.   STATE.  463 


EDMONDS  v.  STATE. 

Supreme  Court  of  Alabama,  1881. 
70  Ala.  8. 

SOMEBVILLE,  J.  The  indictment  in  this  case  charges  the  de- 
fendant with  the  larceny  of  a  hog,  which,  under  the  statute,  is 
made  a  felony,  without  reference  to  the  value  of  the  animal 
stolen.  Code,  1876,  sec.  4358.  The  only  evidence  in  the  case, 
showing  any  caption,  or  asportation  of  the  animal,  was  the  testi- 
mony of  an  accomplice,  one  Wadworth,  who  made  the  following 
statement:  "That  shortly  after  dark,  on  the  18th  of  February 
last,  witness  met  defendant  near  the  horse-lot,  on  the  plantation 
of  one  Ilges;  that  the  two  went  together  to  witness'  house,  where 
the  latter  procured  an  axe,  and  they  then  returned  to  the  lot. 
Witness  then  got  some  corn,  and  after  giving  defendant  the  axe, 
by  dropping  some  of  the  corn  on  the  ground  tolled  the  hog  to 
the  distance  of  about  twenty  yards;  that  the  defendant  then 
struck  the  hog  with  the  axe,  and  the  hog  squealed,  whereupon 
immediately  both  witness  and  defendant  ran  away,  leaving  the 
hog  where  it  was."  Upon  this  state  of  facts,  the  court  charged 
the  jury,  that,  if  they  believed  the  evidence,  it  was  sufficient  to 
show  such  a  taking  and  carrying  away  of  the  property,  if  done 
feloniously,  as  was  necessary  to  make  out  the  offence  of  lar- 
ceny. 

We  think  the  court  erred  in  giving  this  charge,  though  the 
question  presented  is  not  free  from  some  degree  of  doubt  and  dif- 
ficulty. The  usual  definition  of  larceny  is,  "the  felonious  taking 
and  carrying  away  of  the  personal  goods  of  another."  4  Black. 
Com.  229.  It  is  defined  in  Roscoe's  Criminal  Evidence,  as  "the 
wrongful  taking  possession  of  the  goods  of  another,  with  intent  to 
deprive  the  owner  of  his  property  in  them."  Ib.  622.  It  is  a 
well-settled  rule,  liable  to  some  few  exceptions,  perhaps,  that 
every  larceny  necessarily  involves  a  trespass,  and  that  there  can 
be  no  trespass,  unless  there  is  an  actual  or  constructive  taking  of 
possession;  and  this  possession  must  be  entire  and  absolute.  Ros- 
coe's Cr.  Ev.  623-24;  3  Greenl.  Ev.  sec.  154.  There  must  not 


464  SPECIFIC   CRIMES. 

only  be  such  a  caption  as  to  constitute  possession  of,  or  dominion 
over  the  property,  for  an  appreciable  moment  of  time,  but  also 
an  asportation,  or  carrying  away,  which  may  be  accomplished  by 
any  removal  of  the  property  or  goods  from  their  original  status, 
such  as  would  constitute  a  complete  severance  from  the  possession 
of  the  owner.  1  Greenl.  Ev.  sec.  154;  Roscoe's  Cr.  Ev.  p.  625. 
It  has  been  frequently  held,  that  to  chase  and  shoot  an  animal, 
with  felonious  intent,  without  removing  it  after  being  shot,  would 
not  be  such  a  caption  and  asportation  as  to  consummate  the  of- 
fence of  larceny.  Wolf  v.  The  State,  41  Ala.  412;  The  State  v. 
Seagler,  1  Rich.  (S.  C.)  30;  2  Bish.  Cr.  Law,  sec.  797.  So,  it 
has  been  decided,  that  the  mere  upsetting  of  a  barrel  of  turpen- 
tine though  done  with  felonious  intent,  does  not  complete  the 
offence,  for  the  same  reason.  The  State  v.  Jones,  65  N.  C.  395. 
The  books  are  full  of  cases  presenting  similar  illustrations. 

On  the  contrary,  it  is  equally  well  settled,  that  where  a  person 
takes  an  animal  into  an  inclosure,  with  intent  to  steal  it,  and  is 
apprehended  before  he  can  get  it  out,  he  is  guilty  of  larceny.  3 
Inst  109.  In  Wisdom's  Case,  8  Port.  507,  519,  it  was  said, 
arguendo,  by  Mr.  Justice  Goldthwaite,  "If  one  entice  a  horse, 
hog,  or  other  animal,  by  placing  food  in  such  a  situation  as  to 
operate  on  the  volition  of  the  animal,  and  he  assumes  the  domin- 
ion over  it,  and  has  it  once  under  his  control,  the  deed  is  com- 
plete; but,  if  we  suppose  him  detected  before  he  has  the  animal 
under  his  control,  yet  after  he  has  operated  on  its  volition,  the 
offence  would  not  be  consummated."  This  principle  is,  no  doubt, 
a  correct  one;  but  the  true  difficulty  lies  in  its  proper  application. 
It  is  clear,  for  example,  if  one  should  thus  entice  an  animal  from 
the  possession,  actual  or  constructive,  of  the  owner,  and  toll  it 
into  his  own  inclosure,  closing  a  gate  behind  him,  the  custody 
or  dominion  acquired  over  the  animal  might  be  regarded  as  so 
complete  as  to  constitute  larceny.  2  Bish.  Cr.  Law,  sec.  806.  It 
is  equally  manifest  that,  if  one  should,  in  like  manner,  entice  an 
animal,  even  for  a  considerable  distance,  and  it  should  from  in- 
docility,  or  other  reason,  follow  him  so  far  off  as  not  to  come 
virtually  into  his  custody,  the  crime  would  be  incomplete. 

The  controlling  principle,  in  such  cases,  would  seem  to  be, 
that  the  possession  of  the  owner  must  be  so  far  changed  as  that  the 
dominion  of  the  trespasser  shall  be  complete.  His  proximity 


PEOPLE  V.   BROWN.  465 

to  the  intended  booty  must  be  such  as  to  enable  him  to  assert 
this  dominion,  by  taking  actual  control  or  custody  by  manucap- 
tion,  if  he  so  wills.  If  he  abandon  the  enterprise,  however,  be- 
fore being  placed  in  this  attitude,  he  is  not  guilty  of  the  offence 
of  larceny,  though  he  may  be  convicted  of  an  attempt  to  com- 
mit it.  Wolf's  Case,  41  Ala.  412.  It  would  seem  there  can  be 
no  asportation,  within  the  legal  acceptation  of  the  word,  with- 
out a  previously  acquired  dominion. 

The  facts  of  this  case,  taken  alone,  do  not  constitute  larceny. 
It  is  not  a  reasonable  inference  from  them,  that  there  was  such 
a  complete  caption  and  asportation  as  to  consummate  the  of- 
fence. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause 
is  remanded. 

State  v.  Craige,  89  N.  C.  475;  State  v.  Hecox,  83  Mo.  531;  State  v.  Hig- 
gins,  88  Mo.  354;  Eckels  v.  State,  20  Ohio  St.  508;  Harrison  v.  People, 
50  N.  Y.  518;  People  v.  Murphy,  47  Cal.  103;  Molton  v.  State,  16  So.  795; 
Clark,  p.  260;  Bishop  II.,  Sec.  799  et  seq;  Wharton  Sec.  923;  Hawley  & 
McGregor,  p.  198. 


(d)  Intent. 

There  must  be  present  a  felonious  intent  to  deprive  the 
person  permanently  of  his  property. 

PEOPLE  v.  BROWN. 

Supreme  Court  of  California,  1894. 
105  Cal.  66;  38  Pac.  518. 

GAROUTTE,  J.  The  appellant  was  convicted  of  the  crime  of 
burglary,  alleged  by  the  information  to  have  been  committed 
in  entering  a  certain  house  with  intent  to  commit  grand  lar- 
ceny. The  entry  is  conceded,  and  also  it  is  conceded  that  ap- 
pellant took  therefrom  a  certain  bicycje,  the  property  of  the 
party  named  in  the  information,  and  of  such  a  value  as  to  con- 
stitute grand  larceny. 
30 


466  SPECIFIC   CRIMES. 

The  appellant  is  a  boy  of  seventeen  years  of  age,  and  for  a 
few  days  immediately  prior  to  the  taking  of  the  bicycle  was 
staying  at  the  place  from  which  the  machine  was  taken,  work- 
ing for  his  board.  He  took  the  stand  as  a  witness,  and  testi- 
fied: 

"I  took  the  wheel  to  get  even  with  the  boy,  and  of  course 
I  didn't  intend  to  keep  it.  I  just  wanted  to  get  even  with  him. 
The  boy  was  throwing  oranges  at  me  in  the  evening,  and  he 
would  not  stop  when  I  told  him  to,  and  it  made  me  mad,  and  I 
left  Yount's  house  Saturday  morning.  I  thought  I  would  go 
back  and  take  the  boy's  wheel.  He  had  a  wheel,  the  one  I  had 
the  fuss  with.  Instead  of  getting  hold  of  his,  I  got  Frank's, 
but  I  intended  to  take  it  back  Sunday  night;  but  before  I  got 
back  they  caught  me.  I  took  it  down  by  the  grove,  and  put  it 
on  the  ground,  and  covered  it  with  brush,  and  crawled  in,  and 
Frank  came  and  hauled  off  the  brush  and  said:  'What  are  you 
doing  here?'  Then  I  told  him  *  *  *  I  covered  myself  up 
in  the  brush  so  that  they  could  not  find  me  until  evening, 
until  I  could  take  it  back.  I  did  not  want  them  to  find  me.  I 
expected  to  remain  there  during  the  day,  and  not  go  back  until 
evening." 

Upon  the  foregoing  state  of  facts  the  court  gave  the  jury 
the  following  instruction:  "I  think  it  is  not  necessary  to  say 
very  much  to  you  in  this  case.  I  may  say,  generally,  that  I 
think  counsel  for  the  defence  here  stated  to  you  in  this  argu- 
ment very  fairly  the  principles  of  law  governing  this  case,  ex- 
cept in  one  particular.  In  defining  to  you  the  crime  of  grand 
larceny  he  says  it  is  essential  that  the  taking  of  it  must  be  fel- 
onious. That  is  true;  the  taking  with  the  intent  to  deprive  the 
owner  of  it;  but  he  adds  the  conclusion  that  you  must  find  that 
the  taker  intended  to  deprive  him  of  it  permanently.  I  do  not 
think  that  is  the  law.  I  think  in  this  case,  for  example,  if  the 
defendant  took  this  bicycle,  we  will  say  for  the  purpose  of  rid- 
ing twenty-five  miles,  for  the  purpose  of  enabling  him  to  get 
away,  and  then  left  it  for  another  to  get  it,  and  intended  to  do 
nothing  else  except  to  help  himself  away  for  a  certain  distance, 
it  would  be  larceny,  just  as  much  as  though  he  intended  to  take 
it  all  the  while.  A  man  may  take  a  horse,  for  instance,  not  with 
the  intent  to  convert  it  wholly  and  permanently  to  his  own  use, 


PEOPLE   V.   BROWN.  467 

but  to  ride  it  to  a  certain  distance,  for  a  certain  purpose  he  may 
have,  and  then  leave  it.  He  converts  it  to  that  extent  to  his 
own  use  and  purpose  feloniously." 

This  instruction  is  erroneous,  and  demands  a  reversal  of  the 
judgment.  If  the  boy's  story  be  true  he  is  not  guilty  of  lar- 
ceny in  taking  the  machine;  yet,  under  the  instruction  of  the 
court,  the  words  from  his  own  mouth  convicted  him.  The 
court  told  the  jury  that  larceny  may  be  committed,  even 
though  it  was  only  the  intent  of  the  party  taking  the  property 
to  deprive  the  owner  of  it  temporarily.  We  think  the  author- 
ities form  an  unbroken  line  to  the  effect  that  the  felonious  in- 
tent must  be  to  deprive  the  owner  of  the  property  permanently. 
The  illustration  contained  in  the  instruction  as  to  the  man  tak- 
ing the  horse  is  too  broad  in  its  terms  as  stating  a  correct  prin- 
ciple of  law.  Under  the  circumstances  depicted  by  the  illustra- 
tion the  man  might,  and  again  he  might  not,  be  guilty  of  lar- 
ceny. It  would  be  a  pure  question  of  fact  for  the  jury,  and  de- 
pendent for  its  true  solution  upon  all  the  circumstances- 
surrounding  the  transaction.  But  the  test  of  law  to  be  applied 
to  these  circumstances  for  the  purpose  of  determining  the= 
ultimate  fact  as  to  the  man's  guilt  or  innocence  is,  Did  he  in- 
tend to  permanently  deprive  the  owner  of  his  property?  If  he- 
did  not  intend  so  to  do,  there  is  no  felonious  intent,  and  his  acts, 
constitute  but  a  trespass.  While  the  felonious  intent  of  the= 
party  taking  need  not  necessarily  be  an  intention  to  convert 
the  property  to  his  own  use,  still  it  must  in  all  cases  be  an  in- 
tent to  wholly  and  permanently  deprive  the  owner  thereof.  A» 
directly  and  fully  sustaining  this  principle  we  cite:  State  v~ 
Davis,  38  K  J.  L.  176;  20  Am.  Rep.  367;  State  v.  Homes, 
17  Mo.  379;  57  Am.  Dec.  269,  and  note  275;  State  v.  South, 
28  K  J.  L.  28;  75  Am.  Dec.  250;  State  v.  Ryan,  12  Nev.  401; 
28  Am.  Rep.  802;  State  v.  Slingerland,  19  Nev.  135;  Desty's 
American  Criminal  Law,  sec.  155  J;  People  v.  Juarez,  28  CaL 
380. 

For  the  foregoing  reasons  it  is  ordered  that  the  judgment 
and  order  be  reversed  and  the  cause  remanded  for  a  new  trial. 

State,  v.  Con  way,  18  Mo.  322;  Mead  v.  State,  25  Neb.  444;  Billard  v. 
State,  30  Tex.  368;  Donahue  v.  State,  23  Tex.  App.  457;  Phelps  v.  Peo- 
ple, 55  111.  334;  State  v.  Coombs,  55  Me.  477;  Com.  v.  White,  11  Gush.  483; 


468  SPECIFIC   CRIMES. 

Weaver  v.  State,  77  Ala.  26;  Com.  v.  Mason,  105  Mass.  163;  Fort  v.  State, 
82  Ala.  50;  People  v.  Brown,  105  Cal.  66;  Lancaster  v.  State,  3  Cold.  339; 
People  v.  Stone,  16  Cal.  369;  Johnson  v.  State,  36  Tex.  375;  Bishop  II., 
Sec.  840  et  seq.;  Clark,  p.  262;  Wharton,  Sec.  883;  Hawley  &  McGregor, 
p.  193. 

NOTE. — Statutes  generally  provide  that  Intent  to  restore  Is  not  a 
defence  unless  the  restoration  Is  made  before  the  complaint  Is  filed. 

Minn.  Stat.  1894,  Sec.  6729;  N.  Y.  Penal  Code,  Sec.  549;  Truslow  v. 
State,  31  S.  W.  987. 

NOTE.— The  crime  Is  only  complete  upon  an  asportatlon  of  the  prop- 
erty; there  must  be  a  carrying  of  It  away  from  the  place  It  occupies, 
though  It  be  but  the  slightest  removal. 

If  It  is  dropped  immediately,  the  offence  is  committed. 

State  v.  Green,  81  N.  C.  560;  State  v.  Craige,  89  N.  C.  475;  State  v. 
Hecox,  83  Mo.  475;  State  v.  Higgins,  88  Mo.  354;  Eckels  v.  State,  20 
Ohio  St.  508;  Clark,  p.  378,  note. 

NOTE.— In  some  Jurisdictions  larceny  is  divided  into  grand  and  petit, 
and  grand  larceny  is  divided  into  two  degrees. 
It  is  grand  larceny  in  the  first  degree: 

(1)  When  property  of  any  value  is  taken  from  a  person  in  the  night 
time. 

(2)  When  property  in  value  more  than  $25  is  taken  in  the  night  time 
from  any  dwelling  house,  office,  bank,  shop,  warehouse,  etc. 

(3)  When  property  in  value  more  than  $500  is  taken  in  any  manner. 
In  the  second  degree: 

(1)  When,  under  circumstances  not  amounting  to  grand  larceny,  a 
person  takes  or  appropriates  property  of  the  value  of  more  than  $25, 
but  not  exceeding  $500,  in  any  manner. 

(2)  When  property  of  any  value  by  taking  the  same  from  the  person 
of  another.   Or 

(3)  By  taking  the  same  in  the  day  time  from  any  dwelling  house, 
office,  bank,  etc. 

Minn.  Stat.  1894,  Sees.  6712,  6713. 

NOTE. — Petit  larceny  is  any  other  larceny. 
Minn.  Stat.  1894,  Sees.  6714,  6717. 

NOTE.— Bringing  stolen  property  into  the  State  Is  a  crime  in  every 
county  through  which  it  passes,  or  from  one  county  to  another  it  is  a 
crime  in  either,  and  can  be  indicted  and  tried  in  either. 

Minn.  Stat.  1894,  Sees.  6721,  6722;  State  v.  Kief,  12  Mont.  92. 


ROBERTS  V.    THE   STATE.  469 


False  Pretence. 

False  pretence  is  the  designedly  obtaining  property  by 
deception  with  the  intent  to  defraud. 

ROBERTS  v.  THE  STATE. 

Supreme  Court  of  Tennessee,  1859. 
2  Head,  501. 

CARUTHERS,  J.,  delivered  the  opinion  of  the  court. 

The  indictment  and  conviction  in  this  case  was  for  obtaining 
twenty  dollars  in  bank  notes  by  false  pretences,  under  the 
Code,  art.  5,  p.  844.  The  term  of  imprisonment  was  fixed  at 
seven  years. 

Code,  sec.  4701:  "Every  person,  who  by  any  false  pretence, 
or  by  any  false  token,  or  counterfeit  letter,  with  intent  to  de- 
fraud another,  obtains  from  any  person  any  personal  property, 
on  the  signature  of  any  person  to  any  written  instrument,  the 
false  making  of  which  is  forgery,  shall,  on  conviction,"  etc. 
The  difficulty  made  upon  the  section  is  entirely  obviated  by 
changing  the  word  on  to  or,  in  the  third  line  after  the  word 
"property,"  which  was  evidently  intended,  and  must  be  re- 
garded as  a  clerical  error  or  misprint.  It  would  be  nonsense 
as  it  stands,  and  must  be  read  with  the  change  suggested.  It 
would  then  so  read  to  make  the  "obtaining"  of  property,  includ- 
ing money,  or  "obtaining"  the  name  of  any  one  to  an  instru- 
ment, by  false  pretences,  tokens,  or  counterfeit  letters,  felony. 
This  last  branch  of  the  offence  is  not  in  the  act  of  1842,  but  is 
certainly  an  improvement  of  it.  This  reformation  of  the  lan- 
guage of  the  act,  by  changing  the  word  "on"  to  "or"  is  indis- 
pensable to  make  it  intelligible. 

It  is  insisted,  that  if  the  plaintiff  in  error,  and  his  accomplice, 
Smith,  whose  case  is  not  now  before  us,  are  guilty  of  any  offence, 


470  SPECIFIC   CRIMES. 

it  is  that  of  passing  counterfeit  coin,  and  not  the  offence  charged. 
This  position  is  correct,  if  it  applies,  as  we  have  heretofore  held. 
It  was  not  intended  by  the  act  of  1842,  or  the  Code,  sec.  4701, 
to  cover  or  give  a  new  name  to  the  then  existing  and  long  estab- 
lished offence  of  passing  counterfeit  money,  but  to  create  a  new 
felony.  So  if  the  crime  here  consisted  of  passing  counterfeit 
coin  for  goods  or  bank  notes,  the  conviction  would  be  erroneous, 
because  that  is  not  the  charge  in  the  indictment. 

These  are  the  facts,  as  stated  by  the  prosecutor,  Stephen 
Gibson: 

"On  the  10th  of  February,  1859,  he  was  at  a  boarding-house, 
near  the  Memphis  and  Charleston  Railroad  depot,  in  company 
with  two  gentlemen  from  Arkansas;  that  while  conversing  with 
them,  the  defendant,  Roberts,  came  up  to  them  and  joined  in 
the  conversation.  He  told  defendant,  Roberts,  that  he  was  from 
Alabama,  and  a  stranger  in  Memphis.  Roberts  spoke  of  the 
danger  to  be  apprehended  by  strangers  from  pickpockets,  thieves, 
and  swindlers  who  infested  the  depot  and  city;  that  they  all 
walked  over  to  the  depot,  still  talking  about  thieves,  etc. ;  that  soon 
after  they  reached  the  depot,  and  were  standing  near  the  lamps, 
William  Smith,  who  is  jointly  indicted,  came  up  to  where  they 
were  standing,  and  asked  Roberts  if  he  could  change  for  him  a 
twenty  dollar  gold  piece.  Roberts  said  he  did  not  know,  but 
would  look  and  see,  and  pulled  out  his  port-monnaie  and  ex- 
amined it,  and  said  that  he  could  not,  but  perhaps  the  gentle- 
man from  Alabama  could  give  him  the  change.  Witness  then 
said  he  believed  he  could,  and  walked  to  the  light  with  Roberts 
and  Smith,  where  he  pulled  out  his  pocketbook  and  took  there- 
from two  five  dollar  bills,  one  on  an  Alabama  and  the  other  on  a 
South  Carolina  bank,  and  a  ten  dollar  bill  on  the  Bank  of  Ten- 
nessee, and  handed  the  same  to  Smith,  who  thereupon  handed 
witness  what  he,  at  first,  took  to  be  a  twenty  dollar  gold  piece, 
but  which  was  in  fact  a  piece  of  spurious  metal,  about  the  size 
of  a  twenty-dollar  gold  piece,  which  was  the  color  of  gold;  and 
upon  one  side  could  not  be  distinguished,  without  close  inspec- 
tion, from  genuine  gold  coin;  but  on  examination  of  the  other 
side,  it  could  be  easily  and  readily  discovered  to  be  but  an  ad- 
vertisement, and  did  not  purport  to  be  gold  coin."  Smith  im- 
mediately made  off  with  the  bank  bills,  before  the  witness  had 


STATE  V.   MATTHEWS.  471 

inspected  the  metal,  which  he  at  once  discovered  to  be  base 
metal,  but  could  not  overtake  Smith.  The  defendant  denied 
having  any  acquaintance  with  Smith ;  but  made  his  escape  while 
the  prosecutor  went  after  a  policeman.  They  were  both  soon 
after  arrested,  and  found  to  be  well  acquainted,  and  both  had  in 
possession  the  same  kind  of  metal  pieces  passed  to  defendant. 
The  proof  leaves  no  doubt  of  the  complicity  of  Koberts  with 
Smith,  or  the  guilt  of  both. 

This  was  not  counterfeit  coin,  as  it  did  not  purport  to  be  a 
representation  of  gold  coin,  when  examined,  but  a  false  imita- 
tion of  it  only  on  one  side.  It  was  a  trick,  and  base  contrivance, 
and  false  pretence  to  obtain  money  or  property  fraudulently. 
This  is  the  offence  charged  against  them.  This  objection,  then, 
cannot  be  maintained. 

Again,  it  is  insisted  that  the  imposition  could  have  been  easily 
detected  by  ordinary  care,  and  therefore  it  does  not  constitute 
the  offence  charged.  This  does  not  fall  within  that  class  of  cases 
contained  in  the  books  referred  to.  It  was  calculated  to  deceive, 
and  did  deceive  under  the  circumstances.  The  time,  place, 
and  circumstances  are  all  to  be  taken  into  view  in  determining 
this  question.  Only  one  side  of  the  metal  was  presented,  and 
that  by  a  dim  light,  and  in  the  hurry  and  confidence  of  the 
moment,  was  calculated  to  deceive  and  accomplish  the  fraudulent 
purpose.  We  are  not  disposed  to  carry  this  defence  to  the  extent 
of  some  of  the  cases  relied  upon,  to  screen  the  guilty  thief  from 
the  penalty  of  the  law  for  this  most  detestable  species  of  larceny. 
The  Irick  must  be  obvious  and  palpable  to  ordinary  observation 
— the  circumstances  all  considered — to  constitute  this  defence. 

The  conviction  is  well  sustained  by  the  law  and  evidence,  and 
the  judgment  is  affirmed. 


STATE  v.  MATTHEWS. 

Supreme  Court  of  North  Carolina,  1884. 
91  N.  C.  635. 

INDICTMENT  for  false  pretence,  tried  at  Fall  Term,  1883,  of 
Rockingham  Superior  Court,  before  MacRae,  J. 


472  SPECIFIC  CRIMES. 

The  facts  in  the  case  as  developed  by  the  evidence  are,  that  de- 
fendant went  to  the  store  of  R.  H.  Smith  in  September,  1883, 
and  asked  Smith  to  credit  him  for  some  goods,  and  stated  that 
the  child  of  his  sister-in-law  was  dead,  and  that  the  articles  he 
wished  to  buy  were  necessary  for  the  burial  of  the  child.  Smith 
refused  to  let  the  defendant  have  the  goods  at  first,  but  he 
begged  so  earnestly  that  he  finally  sold  him  a  piece  of  cotton 
cloth  on  credit.  Defendant  promised  to  pay  for  it,  but  it  was 
the  charitable  object  alone  that  induced  Smith  to  let  him  have 
the  goods,  because  he  said  his  sister-in-law's  child  was  dead,  and 
she  needed  the  cloth  to  bury  it.  But  at  the  time  of  the  transac- 
tion the  defendant  had  no  sister-in-law,  and  the  statement  as  to 
the  death  of  the  child  was  false. 

The  defendant  upon  this  state  of  facts  requested  the  court  to 
charge  the  jury  that  he  was  not  guilty,  but  the  court  refused  to 
give  the  charge. 

There  was  a  verdict  of  guilty  and  judgment  thereon,  from 
which  the  defendant  appealed. 

ASHE,  J.  It  is  well  settled  that  to  constitute  the  crime  of  false 
pretence  under  Bat.  Rev.,  ch.  32,  sec.  67,  The  Code,  sec.  1025, 
that  there  must  be  a  false  pretence  of  a  subsisting  fact;  the  pre- 
tence must  be  knowingly  false;  money,  goods  or  other  thing  of 
value  must  be  unlawfully  obtained  by  means  of  the  false  pre- 
tence, and  with  the  intent  to  cheat  and  defraud  the  owner  of  the 
same.  State  v.  Dickson,  88  N.  C.,  643,  and  cases  there  cited  to 
the  same  effect. 

Here,  the  defendant  failing  to  purchase  the  goods  upon  a 
credit,  resorted  to  the  falsehood  of  stating  that  his  sister-in-law's 
child  was  dead  and  the  cloth  was  needed  for  its  burial.  The  death 
of  the  child  was  the  false  pretence  of  a  subsisting  fact.  The  de- 
fendant had  no  sister-in-law,  and  no  child  of  a  sister-in-law  was 
dead.  He  knew  the  statement  was  false,  and  could  have  been 
made  with  no  other  purpose  than  to  cheat  and  defraud  Smith  of 
his  goods.  And  the  goods  were  obtained  by  means  of  the  false 
pretence.  These  facts  bring  the  case  fully  up  to  the  require- 
ments of  the  statute. 

It  can  make  no  sort  of  difference  what  motive  prompted  Smith 
to  part  with  his  goods,  whether  for  the  sake  of  gain  or  from  feel- 
ings of  charity. 


COMMONWEALTH  V.    RYAN.  473 

It  is  certainly  a  very  lame  defence,  set  up  by  the  defendant, 
that  he  is  not  guilty  because  the  goods  of  the  owner  were  parted 
with  under  the  promptings  of  a  charitable  motive,  when  he  him- 
self, by  his  false  statements,  has  excited  the  benevolent  feelings 
through  the  influence  of  which  he  obtained  the  goods.  If  he  had 
not  made  the  false  statement  as  to  the  death  of  the  child,  the 
owner  of  the  goods  would  not  have  had  his  charitable  sympathy 
aroused,  and  but  for  those  feelings  he  would  not  have  parted 
with  his  goods.  The  goods  consequently  were  obtained  by  means 
of  the  false  pretence. 

There  is  no  error.  This  must  be  certified  to  the  Superior  Court 
of  Rockingham  county,  that  the  case  may  be  proceeded  with 
according  to  law. 

No  error. 

Affirmed. 

People  v.  Rai,  66  Gal.  423;  State  v,  Moore,  111  N.  0.  667;  State  v.  Wil- 
lard,  109  Mo.  242;  State  v.  Dickson,  88  N.  C.  643;  State  v.  Phifer,  65 
N.  O.  321;  Clark,  p.  278  et  seq.;  Bish.  I.,  Sec.  586;  Wharton,  Sec.  1130; 
Hawley  &  McGregor,  p.  212. 

NOTE. — Statutes  indicate  what  acts  will  constitute  the  offence. 

N.  Y.  Penal  Code,  Sees.  168,  339,  382,  529,  544,  567,  568,  569,  570;  Minn. 
Stat.  1894,  Sees.  6743-6754,  6758-6760. 


f. 
Embezzlement. 

"  Embezzlement  is  the  fraudulent  appropriation  of  an- 
other's property  by  one  having  the  lawful  possession." 

COMMONWEALTH  v.  RYAN. 

Supreme  Judicial  Court  of  Massachusetts,  18P2. 

155  Mass.  523;  30  N.  E.  364.  


HOLMES,  J.  This  is  a  complaint  for  embezzlement  of  money. 
The  case  for  the  government  is  as  follows:  The  defendant  was 
employed  by  one  Sullivan  to  sell  liquor  for  him  in  his  store.  Sul- 


474  SPECIFIC   CRIMES. 

livan  sent  two  detectives  to  the  store,  with  marked  money  of 
Sullivan's,  to  make  a  feigned  purchase  from  the  defendant.  One 
detective  did  so.  The  defendant  dropped  the  money  into  the 
money  drawer  of  a  cash  register,  which  happened  to  be  open  in 
connection  with  another  sale  made  and  registered  by  the  defend- 
ant, but  he  did  not  register  this  sale,  as  was  customary,  and  after- 
ward— it  would  seem  within  a  minute  or  two — he  took  the 
money  from  the  drawer.  The  question  presented  is  whether  it 
appears,  as  matter  of  law,  that  the  defendant  was  not  guilty  of 
embezzlement,  but  was  guilty  of  larceny,  if  of  anything.  The 
defendant  asked  rulings  to  that  effect  on  two  grounds:  first,  that 
after  the  money  was  put  into  the  drawer  it  was  in  Sullivan's 
possession,  and  therefore  the  removal  of  it  was  a  trespass  and  lar- 
ceny; and  secondly,  that  Sullivan's  ownership  of  the  money, 
in  some  way  not  fully  explained,  prevented  the  offence  from 
being  embezzlement.  We  will  consider  these  positions  suc- 
cessively. 

We  must  take  it  as  settled  that  it  is  not  larceny  for  a  servant 
to  convert  property  delivered  to  him  by  a  third  person  for  his 
master,  provided  he  does  so  before  the  goods  have  reached  their 
destination,  or  something  more  has  happened  to  reduce  him  to  a 
mere  custodian;  Commonwealth  v.  King,  9  Gush.  284;  while, 
on  the  other  hand,  if  the  property  is  delivered  to  the  servant  by 
his  master,  the  conversion  is  larceny.  Commonwealth  v.  Berry, 
99  Mass.  428.  Commonwealth  v.  Davis,  104  Mass.  548. 

This  distinction  is  not  very  satisfactory,  but  it  is  due  to  his- 
torical accidents  in  the  development  of  the  criminal  law,  coupled, 
perhaps,  with  an  unwillingness  on  the  part  of  the  judges  to  en- 
large the  limits  of  a  capital  offence.  2  Leach  (4th  ed.),  843, 
848,  note;  1  Leach  (4th  ed.),  35,  note;  2  East,  P.  C.  568,  571. 

The  history  of  it  is  this.  There  was  no  felony  when  a  man 
received  possession  of  goods  from  the  owner  without  violence. 
Glanv.,  bk.  10,  c.  13.  Y.  B.  13  Edw.  IV.  9,  pi.  5.  3  Co.  Inst. 
107.  The  early  judges  did  not  always  distinguish  clearly  in 
their  language  between  the  delivery  of  possession  to  a  bailee  and 
the  giving  of  custody  to  a  servant,  which  indeed  later  judges 
some  times  have  failed  to  do.  E.  g.  Littleton  in  Y.  B.  2  Edw. 
IV.  15,  pi.  7.  3  Hen.  VII.  12,  pi.  9.  Ward  v.  Macauley,  4  T. 
R.  489,  490.  When  the  peculiar  law  of  master  and  servant  was 


COMMONWEALTH  V.    RYAN.  475 

applied  either  to  the  master's  responsibility  or  to  his  possession, 
the  test  seems  to  have  been  whether  or  not  the  servant  was  under 
the  master's  eye,  rather  than  based  on  the  notion  of  status  and 
identity  of  person,  as  it  was  at  a  later  day.  See  Byington  v. 
Simpson,  134  Mass.  169,  170.  Within  his  house  a  master  might 
be  answerable  for  the  torts  of  his  servant,  and  might  have  pos- 
session of  goods  in  his  servant's  custody,  although  he  himself  had 
put  the  goods  into  the  servant's  hands;  outside  the  house  there 
was  more  doubt;  as  when  a  master  intrusted  his  horse  to  his 
servant  to  go  to  market.  Y.  B.  21  Hen.  VII.  14,  pi.  21.  T.  24 
Edw.  III.  Bristol,  in  Molloy,  De  Jure  Maritime,  bk.  2>  c.  3, 
sec.  16.  Y.  B.  2  Hen.  IV.  18,  pi.  6.  13  Edw.  IV.  10,  pi.  5;  S. 
C.  Bro.  Abr.  Corone,  pi.  160.  Staundforde,  I.,  c.  15,  fol.  25;  c. 
18,  fol.  26.  1  Hale,  P.  C.  505,  note.  See  Heydon  &  Smith's 
Case,  13  Co.  Kep.  67,  69;  Drope  v.  Theyar,  Popham,  178,  179; 
Combs  v.  Bradley,  2  Salk.  613;  and,  further,  42  Ass.  pi.  17, 
fol.  260;  42  Edw.  III.  11,  pi.  13;  Ass.  Jerus.  (ed.  1690),  cc. 
205,  217.  It  was  settled  by  St.  21  Hen.  VIII.  c.  7,  that  the  con- 
version of  goods  delivered  to  a  servant  by  his  master  was  felony, 
.and  this  statute  has  been  thought  to  be  only  declaratory  of  the 
common  law  in  later  times,  since  the  distinction  between  the 
possession  of  a  bailee  and  the  custody  of  a  servant  has  been 
developed  more  fully,  on  the  ground  that  the  custody  of  the 
servant  is  the  possession  of  the  master.  2  East,  P.  C.  564,  565. 
The  King  v.  Wilkins,  1  Leach  (4th  ed.),  520,  523.  See  Kelyng, 
35;  Fitzh.  Nat.  Brev.  91  E;  Blosse's  Case,  Moore,  248;  S.  C. 
Owen,  52,  and  Gouldsb.  72.  But  probably  when  the  act  was 
passed  it  confirmed  the  above  mentioned  doubt  as  to  the  master's 
possession  where  the  servant  was  intrusted  with  property  at  a 
•distance  from  his  master's  house  in  cases  outside  the  statute,  .that 
is,  when  the  chattels  were  delivered  by  a  third  person.  In  Dyer, 
5a,  5b,  it  was  said  that  it  was  not  within  the  statute  if  an  ap- 
prentice ran  off  with  the  money  received  from  a  third  person 
for  his  master's  goods  at  a  fair,  because  he  had  it  not  by  the  de- 
livery of  his  master.  This,  very  likely,  was  correct,  because  the 
statute  only  dealt  with  delivery  by  the  master;  but  the  case  was 
taken  before  long  as  authority  for  the  broader  proposition  that 
the  act  is  not  a  felony,  and  the  reason  was  invented  to  account 
for  it  that  the  servant  has  possession,  because  the  money  is  de- 


476  SPECIFIC   CRIMES. 

livered  to  him.    1  Hale,  P.  C.  667,  668.   This  phrase  about  de- 
livery seems  to  have  been  used  first  in  an  attempt  to  distinguish 
between  servants  and   bailees;    Y.  B.  13  Edw.  IV.  10,  pi.  5; 
Moore,  248;  but  as  used  here  it  is  a  perverted  remnant  of  the 
old  and  now  exploded  notion  that  a  servant  away  from  his  mas- 
ter's house  always  has  possession.     The  old  case  of  the  servant 
converting  a  horse  with  which  his  master  had  intrusted  him  to  go- 
to market  was  stated  and  explained   in   the  same  way,  on  the 
ground  that  the  horse  was  delivered  to  the  servant.     Crompton, 
Just.  35b,  pi.  7.    See  The  King  v.  Bass,  1  Leach  (4th  ed.),  251. 
Yet  the  emptiness  of  the  explanation  was  shown  by  the  fact  that 
it  still  was  held  felony  when  the  master  delivered  property  for 
service  in  his  own  house.    Kelyng,  35.  The  last  step  was  for  the 
principle  thus  qualified  and  explained  to  be  applied  to  a  delivery 
by  a  third  person  to  a  servant  in  his  master's  shop,  although  it  is 
possible  at  least  that  the  case  would  have  been  decided  differ- 
ently in  the  time  of  the  Year  Books;  Y.  B.  2  Edw.  IV.  15,  pi. 
7;    Fitzh.  Nat.  Brev.  91    E;    and  although    it  is  questionable 
whether  on  sound  theory  the  possession  is  not  as  much  in  the 
master  as  if  he  had  delivered  the  property  himself.   Rex  v.  Ding- 
ley  (1687),  stated  in  The  King  v.  Bazeley,  2  Leach  (4th  ed.), 
835,  841,  and  in  The  King  v.  Meeres,  1  Show.  50, 53.     Waited 
Case  (1743),  2  East,  P.  C.  570;  S.  C.  1  Leach  (4th  ed.),"  28,"  35, 
note.    Bull's  Case,  stated  in  The  King  v.  Bazeley,  2  Leach  (4th 
ed.),  835,  841;  S.  C.  2  East,  P.  C.  571,  572.  The  King  v.  Baze- 
ley, ubi  supra;  Regina  v.  Masters,  1  Den.  C.  C.  332.   Regina  v. 
Reed,  Dears.  C.  C.  257,  261,  262. 

The  last  mentioned  decisions  made  it  necessary  to  consider 
with  care  what  more  was  necessary,  and  what  was  sufficient,  to 
reduce  the  servant  to  the  position  of  a  mere  custodian.  An 
obvious  case  was  when  the  property  was  finally  deposited  in  the 
place  of  deposit  provided  by  the  master,  and  subject  to  his  con- 
trol, although  there  was  some  nice  discussion  as  to  what  consti- 
tuted such  a  place.  Regina  v.  Reed,  Dears.  C.  C.  257.  No 
doubt  a  final  deposit  of  money  in  the  till  of  a  shop  would  have 
the  effect.  Waite's  Case,  2  East,  P.  C.  570,  571;  S.  C.  1 
Leach  (4th  ed.),  28,  35,  note.  Bull's  Case,  2  East,  P.  C.  572; 
S.  C.  2  Leach  (4th  ed.),  841,  842.  The  King  v.  Bazeley,  2  East, 
P.  C.  571,  574;  S.  C.  2  Leach  (4th  ed.),  835,  843,  note.  Regina 


COMMONWEALTH  V.   RYAN.  477 

«.  Wright,  Dears.  &  Bell,  431,  441.  But  it  is  plain  that  the 
mere  physical  presence  of  the  money  there  for  a  moment  is  not 
conclusive  while  the  servant  is  on  the  spot  and  has  not  lost  his 
power  over  it;  as,  for  instance,  if  the  servant  drops  it,  and  in- 
stantly picks  it  up  again.  Such  cases  are  among  the  few  in 
which  the  actual  intent  of  the  party  is  legally  important;  for, 
.apart  from  other  considerations,  the  character  in  which  he  ex- 
ercises his  control  depends  entirely  upon  himself.  Sloan  v.  Mer- 
rill, 135  Mass.  17,  19.  Jefferds  v.  Alvard,  151  Mass.  94,  95. 
Commonwealth  v.  Drew,  153  Mass.  588,  594. 

It  follows  from  what  we  have  said,  that  the  defendant's  first 
position  cannot  be  maintained,  and  that  the  judge  was  right  in 
•charging  the  jury  that,  if  the  defendant  before  he  placed  the 
money  in  the  drawer  intended  to  appropriate  it,  and  with  that 
intent  simply  put  it  in  the  drawer  for  his  own  convenience  in 
keeping  it  for  himself,  that  would  not  make  his  appropriation  of 
it  just  afterwards  larceny.  The  distinction  may  be  arbitrary, 
but,  as  it  does  not  affect  the  defendanj;  otherwise  than  by  giving 
him  an  opportunity,  whichever  offence  he  was  convicted  of,  to 
contend  that  he  should  have  been  convicted  of  the  other,  we 
have  the  less  uneasiness  in  applying  it. 

With  regard  to  the  defendant's  second  position,  we  see  no 
ground  for  contending  that  the  detective  in  his  doings  was  a 
servant  of  Sullivan,  or  that  he  had  not  a  true  possession  of  the 
money,  if  that  question  were  open,  which  it  is  not.  The  only 
question  reserved  by  the  exceptions  is  whether  Sullivan's  owner- 
ship of  the  money  prevented  the  defendant's  act  from  being 
embezzlement.  It  has  been  supposed  to  make  a  difference  if  the 
right  of  possession  in  the  chattel  converted  by  the  servant  has 
vested  in  the  master  previous  to  the  delivery  to  the  servant  by 
the  third  person.  1  Eng.  Grim.  Law  Com'rs  Rep.  (1834),  31, 
pi.  4.  But  this  notion,  if  anything  more  than  a  defective  state- 
ment of  the  decisions  as  to  delivery  into  the  master's  barge  or 
cart  (Rex  v.  Walsh,  4  Taunt.  258,  266,  and  Regina  v.  Reed, 
ubi  supra),  does  not  apply  to  a  case  like  the  present,  which  has 
been  regarded  as  embezzlement  in  England  for  the  last  hundred 
years.  Bull's  Case,  stated  in  The  King  v.  Bazeley,  2  Leach  (4th 
ed.),  835,  841;  S.  C.  2  East,  P.  C.  571,  572.  The  King  v.  Whit- 
tingham,  2  Leach  (4th  ed.),  912.  The  King  v.  Headge,  2  Leach, 


478  SPECIFIC   CRIMES. 

(4th  ed.),  1033;  S.  C.  Russ.  &  Ry.  160.    Regina  v.  Gill,  Dears. 
C.  C.  289.   If  we  were  to  depart  from  the  English  decisions,  it 
would  not  be  in  the  way  of  introducing  further  distinctions. 
See  Commonwealth  v.  Bennett,  118  Mass.  443,  454. 
Exceptions  overruled. 

Fagnan  v.  Knox,  40  N.  Y.  Superior  Ct.  41;  Com.  v.  Davis,  104  Mass. 
548;  People  v.  Hennessey,  15  Wend.  148;  Com.  v.  King,  9  Cush.  284; 
State  v.  Adams,  108  Mo.  208;  Fulton  v.  State,  8  English  168;  Com.  v. 
Concannon,  5  Allen  502;  Com.  v.  Hays,  14  Gray  62;  Kribs  v.  People,  82 
111.  425;  State  v.  Herges,  55  Minn.  464;  Clark,  p.  270;  Bish.  I.,  Sec. 
567  (2);  Wharton,  Sec.  1009;  Hawley  &  McGregor,  p.  202. 

NOTE. — The  penal  codes  of  the  various  States  provide  for  embezzle- 
ment as  it  was  not  a  common  law  offence,  and  in  some  the  provision 
governing  larceny  also  covers  embezzlement. 

N.  Y.  Penal  Code,  Sees.  470,  472,  528,  541,  548,  549;  Minn.  Stat.  1894, 
Sees.  6709-6711. 


g- 
Malicious  Mischief. 

Is  the  willful  destruction  of  any  property  through  malice 
to  the  owner. 

COMMONWEALTH  v.  WALDEN. 

Supreme  Judicial  Court  of  Massachusetts,  1849. 
3  Gush.  558. 

WILDE,  J.  This  is  an  indictment  for  malicious  mischief, 
wherein  the  defendant  is  charged  with  the  willful  and  malicious 
shooting,  and  severely  injuring,  the  mare  of  one  Robert  Noble, 
contrary  to  the  Rev.  Sts.  c.  126,  sec.  39.  The  evidence  is  not 
reported;  but,  whatever  it  was,  the  court,  in  the  instruction  to 
the  jury,  defined  the  word  "maliciously,"  in  said  section,  to 
mean  "the  willfully  doing  of  any  act  prohibited  by  law,  and  for 
which  the  defendant  had  no  lawful  excuse ;  and  that  moral  turpi- 
tude of  mind  was  not  necessary  to  be  shown."  If  this  definition 
of  the  crime  charged  were  correct,  it  would  follow  that  the 


COMMONWEALTH  V.   WALDEN.  479 

words  "willfully  and  maliciously"  were  intended  by  the  legisla- 
ture to  be  understood  as  synonymous,  and  that  the  statute  is  to 
be  construed  in  the  same  manner  as  it  would  be  if  the  word 
"maliciously"  had  been  omitted.  Such  a  construction,  we  are  of 
opinion,  cannot  be  sustained;  for  if  it  could  be,  it  would  follow, 
that  a  person  would  be  liable  to  be  punished  criminally,  and  with 
great  severity,  for  every  willful  trespass,  however  trifling  the 
injury  might  be,  to  the  personal  property  of  another,  which 
could  not  be  justified  or  excused  in  a  civil  action  against  him, 
for  the  recovery  of  damages,  by  the  owner.  We  do  not  suppose 
the  learned  judge  intended  to  be  so  understood  by  the  jury;  but 
they  might  so  understand  him.  As  to  that  part  of  the  instruc- 
tion, that  moral  turpitude  of  mind  was  not  necessary  to  be 
shown,  whether  correctly  stated  or  not,  we  do  not  think  it  ma- 
terial to  consider.  The  question  is  not  whether  the  jury  were 
rightly  instructed  as  to  what  facts  would  not  constitute  malice, 
but  as  to  what  facts  would  constitute  malice,  or  be  presumptive 
and  conclusive  proof  of  it.  The  learned  judge  was  probably  of 
opinion,  that  if  the  mare  was  injured,  as  alleged,  by  the  dis- 
charge of  a  gun,  loaded  with  powder  and  shot,  that,  ipso  facto, 
would  be  conclusive  proof  of  malice.  But  that  question,  we 
think,  should  have  been  submitted  to  the  jury.  The  gun  might 
have  been  loaded  for  the  purpose  of  shooting  small  birds,  with  a 
very  light  charge  of  powder,  and  very  fine  shot,  which  would 
not  be  likely  to  kill  or  do  great  bodily  harm;  and  we  do  not 
know,  that  any  great  bodily  harm  was  done.  The  only  facts  es- 
tablished by  the  verdict  are,  that  the  mare  was  injured  by  the 
defendant,  by  the  discharge  of  a  gun  loaded  with  powder  and 
shot,  and  that  the  act  was  done  willfully;  but  an  act  may  be  un- 
lawful, and  may  be  done  willfully,  with  or  without  malice,  ac- 
cording to  the  evidence  of  the  motive,  and  of  the  circumstances 
attending  the  transaction.  The  evidence,  therefore,  should  have 
been  submitted  to  the  jury,  with  instructions,  that  they  would 
not  be  warranted  in  finding  a  verdict  of  guilty,  unless  the  injury 
charged  in  the  indictment  was  done  by  the  defendant,  not  only 
willfully,  but  also  maliciously;  that  if  the  injury  was  done  in- 
tentionally and  by  design,  and  not  by  mistake,  accident,  or 
inadvertence,  that  would  fully  support  the  allegation  in  the  in- 
dictment, that  it  was  done  willfully,  according  to  the  true  mean- 


480  SPECIFIC   CRIMES. 

ing  of  the  statute.  But  the  jury  might  infer  malice  from  the 
fact,  that  the  injury  was  done  by  the  discharge  of  a  gun  loaded 
with  powder  and  shot,  unless  the  inference  were  rebutted  by  the 
evidence,  showing  that  the  gun  was  so  loaded  that  it  was  not 
likely  to  kill  or  do  any  great  bodily  harm;  and  the  jury  should 
have  been  so  instructed.  The  jury  should  also  have  been  in- 
structed, that,  to  authorize  them  to  find  the  defendant  guilty, 
they  must  be  satisfied,  that  the  injury  was  done  either  out  of  a 
spirit  of  wanton  cruelty  or  wicked  revenge.  Malicious  mischief, 
amounting  to  a  crime,  is  so  defined  by  Blackstone,  4  Bl.  Com. 
244,  and  in  Jacob's  Law  Dictionary,  by  Tomlin,  under  the  title 
"Mischief,  Malicious;"  and  we  have  no  doubt  that  such  is  the 
true  definition  of  the  crime. 

Exceptions  sustained,  and  new  trial  granted. 


STATE  v.  WATTS. 

Supreme  Court  of  Arkansas,  1886. 
48  Ark.  56;  2  S.  W.  342. 

BATTLE,  J.  Levi  Watts  was  indicted  in  the  Sebastian  Circuit 
Court,  for  the  Greenwood  district,  for  malicious  mischief  com- 
mitted by  him  on  the  10th  day  of  February,  1885,  in  the  Green- 
wood district,  by  then  and  there  unlawfully,  willfully,  mali- 
ciously and  mischievously  cutting,  tearing  down,  injuring  and 
breaking  the  telephone  wire  of  the  Fort  Smith,  Greenwood  and 
Waldron  Telephone  Company,  it  being  of  the  value  of  fifty-five 
dollars.  He  demurred  to  the  indictment,  and  the  court  sustained 
the  demurrer  and  discharged  him. 

The  only  question  in  this  case  is,  was  the  act  charged  in  the 
indictment  an  indictable  offence  at  common  law?  There  was  no 
statute  making  it  a  crime  at  the  time  it  is  alleged  to  have  been 
committed. 

It  is  difficult  to  state  with  minute  precision,  what  is  necessary 
to  constitute  malicious  mischief  at  common  law.  It  has  been  so 
much  legislated  upon,  and  at  such  an  early  day,  that  its  common 
law  limits  are  indistinct.  Blackstone  classes  it  along  with  lar- 


STATE  V.   WATTS.  481 

ceny  and  forgery,  and,  after  treating  of  larceny,  says:  "Mali- 
cious mischief,  or  damage,  is  the  next  species  of  injury  to  private 
property  which  the  law  considers  a  public  crime.  This  is  such 
as  is  done,  not  animo  furandi,  or  with  an  intent  of  gaining  by 
another's  loss,  which  is  some,  though  a  weak  excuse,  but  either 
out  of  a  spirit  of  wanton  cruelty,  or  black  and  diabolical  revenge, 
in  which  it  bears  a  near  relation  to  the  crime  of  arson ;  for  as  that 
affects  the  habitation,  so  this  does  the  other  property  of  indi- 
viduals. And  therefore  any  damage  arising  from  this  mis- 
chievous disposition,  though  only  trespass  at  common  law,  is 
now,  by  a  multitude  of  statutes,  made  penal  in  the  highest 
degree."  And  he  then  enumerates  several  statutes  which  ele- 
vated it  to  a  felony. 

Some  judges,  relying  on  this  passage,  and  understanding  the 
word  "trespass"  therein  according  to  its  modern  signification, 
have  denied  that  the  offence  of  malicious  mischief  exists  under 
the  common  law  of  this  country.  But,  upon  a  careful  reading,  it 
is  obvious  that  the  word  "trespass"  is  used  by  Blackstone  in  this 
passage  in  the  sense  of  misdemeanor.  It  is  used,  by  him  in 
various  places  in  his  Commentaries  in  that  sense;  as,  where, 
speaking  of  officers  who  voluntarily  suffer  prisoners  to  escape,  he 
says:  "It  is  generally  agreed  that  such  escapes  amount  to  the 
same  kind  of  offence  and  are  punishable  in  the  same  degree  as 
the  offence  of  which  the  prisoner  is  guilty,  and  for  which  he  is 
in  custody,  whether  treason,  felony  or  trespass."  And  again, 
where  he  says:  "In  treason  all  are  principals,  propter  odium 
delicti;  in  trespass  all  are  principals,  because  the  law,  quae  de 
minimis  non  curat,  does  not  descend  to  distinguish  the  dif- 
ferent shades  of  guilt  in  petty  misdemeanors."  1  Bishop  on 
Grim.  Law,  sees.  568,  569,  625. 

Without  further  discussion,  it  is  sufficient  to  say  that,  accord- 
ing to  the  weight  of  authority  and  the  better  and  prevailing 
opinion,  the  offence  of  malicious  mischief  exists  under  the  com- 
mon law  of  this  country. 

This  offence  includes  all  malicious  physical  injuries  to  the 
rights  of  another  which  impair  utility  or  materially  diminish 
value.  "Thus,  it  has  been  considered  an  offence  at  common  law 
to  maliciously  destroy  a  horse  belonging  to  another;  or  a  cow;  or 
a  steer;  or  any  beast  whatever  which  may  be  the  property  of  an- 

31 


482 


SPECIFIC   CRIMES. 


other;  to  wantonly  kill  an  animal  where  the  effect  is  to  disturb 
and  molest  a  family ;  to  maliciously  cast  the  carcass  of  an  animal 
into  a  well  in  daily  use;  to  maliciously  poison  chickens;  to  fraud- 
ulently tear  up  a  promissory  note,  or  break  windows;  to  mali- 
ciously set  fire  to  a  number  of  barrels  of  tar  belonging  to  another;  to 
maliciously  destroy  any  barrack,  or  corn  crib ;  to  maliciously  girdle 
or  injure  trees  or  plants  kept  either  for  use  or  ornament;  to  mali- 
ciously break  up  a  boat;  to  maliciously  injure  or  deface  tombs; 
and  to  maliciously  strip  from  a  building  copper  pipes  or  sheet- 
ing." These  illustrations  serve  to  indicate  what  is  malicious  mis- 
chief, and  the  subjects  of  the  offence.  Wharton  on  Grim.  Law 
(19  Ed.  ),  sees.  1067,  1076,  and  authorities  cited. 

We  are  satisfied  that  the  act  charged  in  the  indictment  in  this 
case  constitutes  the  offence  of  malicious  mischief;  and  that  the 
demurrer  to  the  same  should  have  been  overruled.  The  judg- 
ment of  the  court  below  is  therefore  reversed,  and  this  cause  is 
remanded,  with  instructions  to  overrule  the  demurrer  and  for 
other  proceedings. 

State  v.  Linde,  54  la.  139;  Duncan  v.  State,  49  Miss.  331;  Goforth  v. 
State,  8  Humph.  37;  Parris  v.  People,  76  111.  274;  State  v.  Beekman,  27 
N.  J.  L.  124;  Nehr  v.  State,  35  Neb.  638;  State  v.  Williamson,  68  la.  351; 
Woodward  v.  State,  28  S.  W.  204;  Brady  v.  State,  26  S.  W.  621;  State  v. 
McBeth,  49  Kan.  584;  Browder  v.  State,  30  Tex.  App.  614;  State  v.  Rob- 
inson, 3  Dev.  &  B.  130;  Com.  v.  Williams,  110  Mass.  401;  Barlow  v. 
State,  120  Ind.  56;  Brown's  Case,  3  Me.  177;  Thomas  v.  State,  30  Ark. 
433;  Clark,  pp.  290,  291;  Wharton,  Sec.  1067. 

NOTE. — Acts  constituting  this  offence  are  specified  in  the  various 
statutes. 

Minn.  Stat.  1894,  Sees.  6686,  6772,  6775-6791;  N.  Y.  Penal  Code,  Sees. 
505,  635,  640. 


INDEX. 


Abduction  defined,  408. 
Abortion  defined,  392. 

Advising  or  supplying  drugs,  406. 

Woman  taking  drugs  guilty  of  crime,  406. 

Wilful  killing  of  unborn  quick  child,  manslaughter,  406. 

Administration  of  drugs  to  a  woman  pregnant  or  not,  406. 

Death  of  child,  woman  guilty  of  manslaughter,  406. 

Manufacture  of  goods  to  cause  miscarriage,  406. 

Keeping  articles  to  prevent  conception,  406. 

Attempt  to  conceal  dead  body  misdemeanor,  406. 
Accessories,  149. 

Accident  or  Misadventure,  responsibility  for,  90. 
Act,  individual,  138. 

Joint,  138. 

By  principals,  149. 

Of  first  degree  defined,  149. 

Of  second  degree  defined,  151. 

By  accessories,  156. 

Before  the  fact  defined,  156. 

After  the  fact  defined,  159. 

Attempts  defined,  161. 

Conspiracies  defined,  170. 

Solicitations  defined,  177. 

Consent  defined,  181. 

Condonation  defined,  184. 

Justified  by  public  policy,  129. 

Wrongful  intent,  136. 

Overwhelming  necessity  relieves,  of  its  criminality,  76. 
Adultery  defined,  407. 

At  Common  Law,  408. 

(483) 


484  INDEX. 

Arrest,  killing  in  resisting  lawful.    See  MURDER,  335. 

Manslaughter,  357,  n. 
Arson  defined,  411. 

Elements,  411. 

Burning,  411. 

Dwelling  houses,  411. 

Another's  house,  417,  421. 

Occupied  by  human  beings,  421. 

In  night  time,  421. 

In  day  time,  422. 

Degrees  of,  421,  422. 
Assault  defined,  361. 

Consent  as  a  defence,  365. 

Degrees  of,  365,  366. 

Justifiable  and  excusable,  366. 

Assaults,  aggravated,  what  are  specific  intents  in,  365. 
Assisting  to  Escape,  271. 
Attempt  defined,  161. 
Attempt  to  Escape,  271. 


Basins,  jurisdiction  of  States  over,  242. 

Bays,  jurisdiction  of  States  over,  242. 

Bestiality  defined,  409. 

Boundary,  jurisdiction  extends  to  on  sea  coast,  223. 

Bribery  defined,  257,  262. 

Gist  of  offence,  257. 
Burden  of  Proof  in  Insanity,  39. 
Burglary  defined,  422. 

Elements,  422. 

Breaking  defined,  422. 

May  be  constructive,  430. 

Entry  defined,  430. 

Intent  defined,  433,  438. 

The  house,  438,  444. 

Night  time,  444. 

Degrees  0^445. 
Buggery  defined.^og. 


INDEX.  485 

c 

Capacity,  affecting  intent,  27. 

Effect  of  coverture  on,  at  Common  Law,  53. 

As  modified  by  statute,  53. 

Of  infants,  27. 

Effect  of  insanity  on,  30. 

Test  of,  in  insanity,  30. 
Carelessness.    See  NEGLIGENCE,  65. 
Chastisement,  Manslaughter,  357,  n. 
Coercion,  67. 
Common  Law,  abrogated  by  statute,  212. 

Crimes,  not  recognized  in  United  States  Courts,  212. 

Criminal  Law  prescribed  by,  203. 

Concurrent  Jurisdiction,  of  United  States  and  States,  253. 
Condonation  defined,  184. 
Consent  defined,  181. 

As  a  defence  to  assault,  365. 

As  a  defence  in  rape,  384. 
Conspiracy  defined,  170. 
Constructive  Intent  defined,  5. 
Cooling  Time.    See  HOMICIDE,  MANSLAUGHTER,  347. 
Corporations,  criminal  responsibility,  54. 

Capacity  of,  54. 
Counties,  jurisdiction  of  crime  committed  near  boundary,  248. 

Jurisdiction  over  stolen  property  passing  through,  248. 

Limits  of  jurisdiction,  242. 
Coverture,  effect  on  capacity,  53. 
Creeks,  jurisdiction  of  States  over,  242. 
Crimes  against  elective  franchise,  256. 

Against  executive  power,  261. 

Against  legislative  power,  261. 

Against  property  defined,  411. 

Against  public  justice,  262. 
Bribery,  262. 
Perjury,  264. 

Against  the  Government,  255. 

Against  the  person  defined,  272. 

Specific  defined,  255. 


486  INDEX. 

Criminal  Law,  Common  Law  abrogated  by,  212. 
How  prescribed,  by  Common  Law,  203. 
by  statute,  209. 

D 

Death,  corpus  delicti,  277. 

Cause  of,  285. 

Time  of,  289. 
Defence  of  person,  299. 

Of  habitation,  300. 

Of  self,  97. 

Of  property,  106. 

in  general,  106. 
of  habitation,  113. 

Excusable  homicide  in  self-,  299. 
Definition  of  Crime,  i. 

Dwelling  outside,  jurisdiction  of  State  over,  248. 
Duress,  67. 

E 

Elective  Franchise,  crimes  against,  256. 
Embezzlement  defined,  473. 

Enforcement  of  Law,  officer,  responsibility  of,  121. 
Escapes,  attempt,  271. 

Assisting,  271. 

Permitting,  271. 

Evidence,  falsifying  or  destroying,  271. 
Excusable  Homicide,  297. 
Excuse,  ignorance  of  law  as  an,  63. 
Excuse  and  Justification,  mistake  of  fact,  88. 
Executive  Power,  crimes  against,  261. 

K 

False  Pretence,  469. 

Falsifying  or  Destroying  Evidence,  271. 

Felonious  Homicides,  suicide,  317. 

At  Common  Law,  317. 

Aiding  or  assisting,  317. 

Murder,  300. 


INDEX.  487 


Felony  defined,  196. 

At  Common  L,aw,  196. 

By  statute,  196 

To  commit  a,  333. 
Forgery  defined,  446. 
Forging,  etc.,  public  records,  271. 
Fornication  defined,  409. 

In  Minnesota,  410. 

O 

Gambling,  410. 

Government,  crimes  against,  255. 


Habitation,  defence  of,  113. 
Harbors,  jurisdiction  of  States  over,  242. 
Havens,  jurisdiction  of  States  over,  242. 
Homicide  defined,  272. 

Elements,  human  being,  272. 
Death,  corpus  delicti,  277. 
Cause  of,  285. 
Time  of,  289. 
Duty  to  retreat,  296. 
Excusable,  297. 
Misadventure,  297. 
Defence  of  person,  299. 

habitation,  300. 
Felonious,  murder,  300. 

Resulting  from  attempt,  322. 
To  kill  the  person  killed,  322. 
To  kill  another  than  person  killed,  326. 
To  do  great  bodily  harm,  331. 
Degree  of,  326,  330,  331. 
In  punishment  of  crimes  justifiable,  290. 
In  prevention  of  crimes  justifiable,  291. 
Kinds,  290. 

Justifiable,  defined,  290. 
Manslaughter  defined,  339. 
Voluntary,  defined,  339. 
In  passion  aroused  by  provocation,  339. 
32 


488  INDEX. 

In  resisting  unlawful  arrest,  347. 
Manslaughter,  what  is,  in  murder,  347. 

Cooling  time,  347. 

Involuntary,  in  doing  unlawful   act,  misdemeanor, 
350. 

In  doing  a  lawful  act,  negligence,  357. 

Self  defence,  357,  n. 

Chastisement,  357,  n. 

Arrest,  357,  n. 
Murder,  death  resulting  from  arrest  and  of  lawful  arrest, 

335- 
When  one  may  kill  to  prevent  a  felony,  296. 

Hudson  River,  jurisdiction  over,  247. 

I 

Ignorance  of  Law  as  an  excuse,  63. 
Incest  defined,  409. 
Individual  Act,  138. 

Infancy,  capacity  of,  ages  7  to  14,  above  14,  under  7,  27. 
Insanity  defined,  30. 

Effect  of,  on  capacity,  30. 

Burden  of  proof  of,  39. 
Intent  defined,  i. 

Constructive,  5. 

Specific,  10. 

Motive,  12. 

Criminal,  19. 

Capacity  as  affecting,  27. 

Wrongful,  136. 
Intoxication,  as  a  defence,  in  general,  46. 

At  Common  Law,  53. 

As  modified  in  some  States,  53. 

To  specific  intent,  53. 

J 

Joint  Act,  138. 

Jurisdiction,  counties,  jurisdiction  over  stolen  property  passing 
through,  248. 
Exclusive  of  United  States,  248. 


INDEX.  489 

Concurrent  of  States  and  United  States,  253. 
In  general,  213. 
Locality,  213,  222. 
In  libel  cases,  248. 
Limits  of  States  and  Counties,  242. 
Limits  of  the  United  States,  223. 

Limits  of  United  States  and  States  made  coincident  by 
statute,  247. 

Non-navigable  rivers,  247. 
Of  Hudson  River,  247. 
Of  Ohio  River,  247. 
Of  ships,  223. 

Over  Mississippi  River,    Minnesota  and  Wis- 
consin, 247. 

"  Thread  of  the  stream  "  in  determining,  247. 
United  States  Admiralty  and  Maritime  Courts, 

248. 

United  States  within  State  limits,  248. 
Of  crime  committed  near  boundary  of  counties, 

248. 

Of  offences  committed  on  railroads,  248. 
Of  State,  duelling  outside,  248. 

Justifiable  and  Excusable,  assaults  and  batteries,  366. 
Justifiable  Homicide  defined,  290. 
In  punishment  of  crimes,  290. 
In  prevention  of  crimes,  291. 
Justification  and  Excuse,  mistake  of  fact,  88. 


Larceny  defined,  451. 
Elements,  451. 
Personal  property,  451. 
The  Act,  453. 
"Carrying  away,  461. 
The  intent,  465. 
Degrees  of,  468. 

Legislative  Power,  crimes  against,  261, 

Libel  defined,  380. 
Malice,  380. 


490  INDEX. 

Truth  as  a  defence,  380. 

Jurisdiction  in  cases  of,  248. 

Limits  of  the  United  States.    See  JURISDICTION,  223. 
Locality  in  determining  jurisdiction,  213. 
Lotteries,  410. 


Malice  in  Libel,  380. 
Malicious  mischief  defined,  478. 
Manslaughter  defined,  339. 

Voluntary,  defined,  339. 

In  passion  aroused  by  provocation,  339. 

In  resisting  unlawful  arrest,  347. 

Marine  League,  boundary  extends  on  sea  coast,  223. 
Mayhem  defined,  358. 

Specific  intent,  361. 

Recovery  before  trial  a  bar,  361. 

To  secure  alms,  etc.,  361. 
Minnesota  and  Wisconsin,  Concurrent  Jurisdiction  over  Mis- 

sissippi River,  247. 

Misadventure,  excusable  homicide,  297. 
Misdemeanor  defined,  200. 
Mississippi  River,  jurisdiction  of,  between  Wisconsin  and  Minne- 

sota concurrent,  247. 

Mistake  of  fact  as  excuse  or  justification,  88. 
Motive  defined,  12. 
Murder  defined,  316. 

Death  resulting  from  resistance  of  lawful  arrest,  335. 

Felonious  homicide,  300.    See  HOMICIDE. 

And  manslaughter,  316. 

N 

Necessity,  76. 

Negligence  in  doing  lawful  act,  manslaughter,  357. 

May  supply  criminal  intent  or  malice,  65. 

When  criminal,  65. 
Non-navigable  Rivers,  jurisdiction  on,  247. 


INDEX.  491 

O 

"Obscene  "  defined,  17. 

Officer  of  the  Law,  responsibility  of,  in  enforcement  of  the  law, 

121. 
Ohio  River,  jurisdiction  over,  247. 


Perjury  defined,  264. 

Essentials  of,  270. 

Subornation  of,  270. 
Permitting  to  Escape,  271. 
Person,  crimes  against,  defined,  272. 
Petit  Treason  defined,  195,  256. 
Presumptions  as  to  Capacity,  27. 
Prevention  of  Crime,  justifiable  homicide,  291. 
Principals,  149. 
Prison  Breach  defined,  271. 

Assisting,  271. 

By  officer,  271. 

Probable  Cause  defined,  338. 
Proof  of  Insanity,  burden  of,  39. 
Property,  crimes  against,  defined,  411. 

Defence  of,  106. 
Publication  in  Libel,  380. 
Public  Justice,  crimes  against,  bribery,  262. 
Public  Policy,  acts  justified  by,  129. 
Punishment  of  Crimes,  homicide  in,  justifiable,  290. 

R 

Rape  defined,  381. 

Presumption  as  to  capacity,  383. 

Consent  as  a  defence,  384. 

Fraud  in  procuring  consent,  388. 

Incapacity  to  consent,  389. 

Penetration,  389. 
Rescue,  271. 


492  INDEX. 

Retreat,  modern  doctrine,  296. 

Right  and  Wrong  Test  of  Insanity,  30. 

Rivers,  jurisdiction  over,  Ohio  and  Hudson,  247. 
Mississippi,  247. 
Jurisdiction  of  States  over,  242. 

Robbery  defined,  367. 
The  taking,  367. 
Force  and  violence,  371. 
Fear,  377. 
Degrees  of,  379. 


Sabbath  Breaking,  410. 
Sea  Coast,  boundary  on,  223. 
Seduction  defined,  389. 
Self-Defence,  97. 

Justifiable  assaults,  386. 

Manslaughter,  357,  n. 
Sepulchre,  violating,  410. 
Ships,  jurisdiction  determined,  223. 
Sodomy  defined,  409. 
Solicitation  defined,  177. 
Specific  Crimes,  defined,  255. 
Specific  Intent,  10, 

Ignorance  of  law  as  affecting,  63. 

In  aggravated  assaults,  365. 

Intoxication  a  defence,  when  an  essential  ingredient,  53. 

Mayhem,  361. 

State,  jurisdiction  of  United  States  within,  248. 
States,  limits  of  jurisdiction,  242. 

And  United  States,  concurrent  jurisdiction,  253. 
Statute,  criminal  law  prescribed  by,  209. 

Abrogates  Common  Law,  when   212. 
Subornation  of  Perjury,  270. 
Suicide,  aiding  or  assisting,  317. 

Attempt  to  commit,  322. 


INDEX.  493 

T 

Tests  of  Insanity,  right  and  wrong,  30. 

Irresistible  impulse,  34. 

Emotional  insanity,  39. 

Moral  insanity,  39. 
*'Thread  of  the  Stream,"   what  is,  in  determining  jurisdiction, 

247. 
Treason  defined,  185,  255. 

Misprision  of  treason,  defined,  256. 

Overt  act  in,  256. 

Petit  defined,  195,  256. 

Those  in  league  guilty,  256. 

Conviction  of  witnesses,  256. 
Truth  as  a  defence  to  libel,  380. 

U 

United  States,  jurisdiction  of,  within  State  limits,  248. 
Limits  of  jurisdiction,  223. 
Territorial  limits  of  States  and,  242. 
And  States,  concurrent  jurisdiction,  253. 
Courts,  no  Common  Law  crimes  recognized  in,  212. 

W 

Wisconsin  and  Minnesota,  Concurrent  jurisdiction  over  Mis- 
sissippi River,  247. 
Wrongful  Intent,  136. 


SSBSPI 


